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Circumstances change. Children grow. A parenting order that made sense two years ago may no longer serve the child’s best interests. Lexaltico LLP brings and defends motions to change custody, parenting time, and decision-making responsibility orders in Ontario courts.
Book My 15-Minute Assessment →Motions to Change | Material Change in Circumstances | Variation of Parenting Orders | Ontario Courts
A material change is a significant change in the condition, means, needs, or circumstances of the child or a party that was not reasonably contemplated when the original order was made. The change must be of a nature that, if known at the time, would likely have resulted in a different order. The standard comes from the Supreme Court of Canada’s decision in Gordon v. Goertz.
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To vary an existing custody or parenting order in Ontario, the moving party must first demonstrate a material change in circumstances since the date of the original order. This threshold is set out in section 17 of the Divorce Act and section 25(1) of the Children’s Law Reform Act. The Supreme Court of Canada in Gordon v. Goertz, [1996] 2 SCR 27, established the test: the change must be one that, if known at the time of the original order, would likely have resulted in a different order.
A material change must be a change in the condition, means, needs, or circumstances of the child or a party. It must be significant, not trivial. It must not have been reasonably contemplated at the time of the original order. And it must relate to the welfare of the child. Common examples include a parent’s relocation, a significant change in the child’s needs (such as a diagnosis or behavioral issue), a parent’s substance abuse or mental health deterioration, and a parent’s persistent non-compliance with the existing order.
At Lexaltico LLP, we carefully assess whether the facts meet the material change threshold before bringing a motion. Filing a weak motion to change wastes time and money, and may result in a costs award against you. Where the evidence supports a motion, we build a thorough record that establishes the change and demonstrates why a new order is in the child’s best interests.
A motion to change involves a two-step analysis. First, the court determines whether a material change in circumstances has occurred. If the threshold is met, the court proceeds to the second step: a fresh analysis of the child’s best interests under section 24 of the Children’s Law Reform Act or section 16 of the Divorce Act. At this second stage, the court is not limited to considering only the changed circumstances. It conducts a full best interests analysis.
However, the court does not start from scratch. The existing arrangement is the baseline, and the court considers the stability and continuity it provides. The Supreme Court of Canada has emphasized that variation is not an invitation to relitigate the original custody determination. The purpose is to respond to genuine changes, not to give a disappointed party a second chance at a trial.
Our lawyers are experienced in both bringing and defending motions to change. We understand the evidentiary requirements at each step and present focused evidence that addresses the court’s analysis, establishing the material change at step one, and demonstrating why the proposed new arrangement serves the child’s best interests at step two.
The 2021 amendments to the Divorce Act introduced a specific framework for relocation disputes. A parent who wishes to make a "relocation", defined as a move that is likely to have a significant impact on the child’s relationship with the other parent, must provide at least 60 days’ written notice using the prescribed form (Form 1). The non-relocating parent has 30 days to object.
If the non-relocating parent objects and the matter goes to court, the burden of proof depends on the existing parenting arrangement. If the child spends substantially equal time with both parents, the relocating parent bears the burden of showing the move is in the child’s best interests. If the child resides primarily with one parent, the objecting parent bears the burden of showing the move is not in the child’s best interests. This asymmetric burden reflects the reality that the primary caregiver’s mobility is important to the child’s overall wellbeing.
Relocation cases are among the most consequential family law disputes. We represent both relocating and objecting parents, preparing thorough evidence about the reasons for the move, the impact on the child, proposed arrangements for maintaining the other parent’s relationship, and the child’s own views where appropriate.
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55 University Ave, Suite 1100
Toronto, ON M5J 2H7
2 Sheppard Ave East, Suite 303, Toronto, ON M2N 5Y7
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Lexaltico LLP
How Lexaltico LLP handles personal information, under PIPEDA and Ontario law.
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The difference is practical rather than technical. A page explaining that spousal support is usually indefinite after a twenty year marriage is accurate as a general statement and may be wrong about you, because of a domestic contract you signed, a period of separation you have forgotten, or an income that is not what a tax return says it is.
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