Changing a Parenting Order in Ontario: Proving a Material Change

Many people search for how to change a custody order. Since March 1, 2021, the Divorce Act no longer uses the terms custody and access. Decision-making responsibility replaced custody, and parenting time replaced access.

If your work, your child's needs or your home has changed, you may wonder whether the order can change too. This article explains the usual route and what a change in circumstances means. A lawyer can tell you how the rules apply to your facts.

Who can ask for a change

Former spouses may apply to vary a Divorce Act parenting order. A non-spouse parent or a person standing in the place of a parent needs leave of the court.

Parents who were never married, or who are not divorcing, cannot get a Divorce Act order. They need a parenting order under Ontario's Children's Law Reform Act. That Act has its own wording on variation, so confirm with a lawyer how it applies if you were never married.

What counts as a change in circumstances

Under the Divorce Act, before varying a parenting order the court must be satisfied that there has been a change in the circumstances of the child since the order was made. People often call this a material change. It is not enough that you would prefer a different arrangement.

• Relocation of a child is deemed to be a change in circumstances. A relocation the court has already prohibited does not count as a change by itself.
• The court cannot consider any conduct that could not have been considered when the original order was made.
• Past conduct, such as a mental health history or past substance use, is not considered unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact.

Whether other events, such as a child's changing needs or a new work schedule, amount to a change depends on the facts and is worth discussing with a lawyer.

Changing the order by agreement

Parents can update an agreement by agreeing to the change, but a court order can only be changed by a new decision from the court.

To change a final parenting order by agreement, both parties sign Form 15C (Consent Motion to Change) in front of witnesses and file it with Form 14B and a typed Form 25 draft order (5 copies). If the judge grants the order, the court sends the signed order. If not, it sends an endorsement explaining why.

Changing the order when the other parent disagrees

To change a final order or filed agreement when the other party does not agree, file Form 15: Motion to Change, sworn before a commissioner. Attach a copy of the order or agreement and Form 35.1 (for parenting changes), and give the other party blank Forms 15B and 15C.

The motion must be served by special service by someone 18 or older other than you. The other party has 30 calendar days to respond, or 60 calendar days if they were served outside Canada or the United States. Parties may have to attend a free Mandatory Information Program session.

Whatever the route, the court considers only the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. It gives the child's views due weight according to age and maturity, unless they cannot be ascertained. A judge can also order the Office of the Children's Lawyer to provide a voice of the child report, typically for children over seven.

Moving with a child

Relocation under the Divorce Act requires notice at least 60 days before the expected move, in the prescribed form, setting out the proposed revised parenting arrangement. The other parent can object within 30 days of receiving the notice.

Who must prove what depends on the existing arrangement. If time is substantially equal, the relocating parent must prove the move is in the child's best interests. If the child spends the vast majority of time with the relocating parent, the objecting parent must prove it is not. Otherwise both share the burden. The court may waive or modify notice requirements, including where there is a risk of family violence.

What to do next

• Write down what changed, when it changed, and how it affects your child.
• Gather the current order or filed agreement and any earlier changes.
• Raise the change with the other parent in writing, if it is safe to do so.
• If you agree, ask a lawyer to review the consent paperwork before signing.
• If you do not agree, get advice before filing and before any move.

Frequently asked questions