How To File A Motion To Change Custody Orders & Child Access in Ontario?

August 1, 2021

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After divorce, things change for families, and so do for the child. Parents get separated, occupations get changed, monetary conditions rise and fall, particularly regarding children. So while there has been a critical change in the child’s or parent’s condition,  everything concerning that can change – child support, parenting, custody, or access. The idea is that the changes must go into the child’s wellbeing.

This article will provide you complete information guide on the following areas – 

  • How To File A Motion To Change Custody Orders & Child Access in Ontario?
  • Child Custody Rules
  • Change in child custody Ontario /agreements?
  • Canadian Case Law on Changing Decision-Making Responsibility, Parenting Time and Parenting Time

How To File A Motion To Change Custody Orders & Child Access in Ontario?

It’s important to understand the Motion To Change Custody Orders process before jumping in. This is a time-sensitive and complicated legal proceeding that can have long-lasting effects on your family life.

To file for a motion to change custody orders and child access in Ontario, it’s essential to understand both terms.

Custody means having the lawful right and duty to settle on the essential choices about the child’s life. 

 It incorporates things like: 

  • Children’s education,
  • Choosing a child’s religion, or 
  •  Settlement of clinical choices for the child. 

Parents with custody are known as custodial parents, and kids generally live with custodial parents more often than not. 

What is Access? 

If one parent gets the child’s authority, the other parent will generally get access. This is because the court typically thinks it is in the child’s well-being to contact the two guardians. Assuming the Court orders Access, this typically implies the option to visit and invest energy with the child and to think about the child’s wellbeing, prosperity, and education. Indeed, even a parent who has not invested a lot of energy with their kid can, for the most part, get access. 

The parent who approaches is known as a non-custodial or accessible parent.

Did You Know?

Under changes to the Divorce Act that took effect on March 1, 2021, “custody” changed with decision-making responsibility and “access” to parenting time for people who are or used to be married to others contact for other people.

What is the motion to change?

A motion to change is the process used when a person wants to ask a judge to modify – 

  • change or end a final court order, 
  • modify or terminate an agreement to pay support 
  • custody access, or 
  • a restraining/non-harassment order

How do I make a motion to change?

Follow this step-by-step guide to file a motion to change custody in Ontario.

Step 1 – Determine If There Is An Assignee

In case you are requesting that the court change or end a final support order, you need to find out whether the support is assigned or not. If consent is with you, it is essential to serve court documents to the assignee and obtain the assignee’s agreement for any changes.

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However, if you fail to serve the assignee or get consent, the court can order costs against you.

Step 2 – Where to make the motion?

In most cases, a motion to change a final order or the support agreement must begin within the municipality where you or the other individual lives. However, suppose the motion is to alter custody or access the child. In that case, a move to change should be made within the region where the child ordinarily lives.

Step 3 – Completion of Forms

To make a motion to change, make sure to complete the list of forms below without any errors.

  • Form 15A: Change Information Form

Form 15A is the document that provides evidence that the judge needs to change the order. Make sure you swear that the proof is valid in front of a person who is a commissioner for taking affidavits. 

  • Form 15C: Consent Motion to Change

Use Form 15C if you are both agreeing to change or end a final order for something other than just child support. Again, it is crucial that you, the other party, and the assignee proof complete and sign this form.

  • Form 14B: Motion Form

In Form 14B, ask the court to change the existing order you asked for in proof15C.

  • Form 35.1: Affidavit (decision-making responsibility, parenting time, contact),

Suppose you’re asking to change your parenting time or decision-making responsibilities. Form 35.1 Affidavit form must need to be completed.

Step 4 – Get your Motion to Change issues by the court.

Once you fill out all the forms, you need to get them issued by the court. You can submit them online through Justice Services Online or offer them in person at the courthouse. 

A court representative will grant your Motion to Change by: 

  1. Mark and date your unique movement to change (Form 15) and apply the court seal to the structure. 
  1. Court document number. You should write the court document number in the crate in the upper right corner of each page of your structure on each duplicate.

Step 5 – Service Documents

Once you complete the form and issuance by the court, it’s time to serve the documents. 

To serve the records of the responding party. You can have your legal counselor, a companion, or another person fill the documents for you. You can employ somebody to do it. If you are tense about your wellbeing, or if it would be hard for you to hire professional services to do so at a cost or distance, tell court staff. They will arrange for themselves to have the documents served to you. 

In case there is an assignee : 

 You can serve by regular mail. However, the reports take five days to get reviewed after you mail them.

Step 6 – File Proof of Service

The person who serves the document must not forget to complete Form 6B – Affidavit of Service. In this document, the individual who performed the compositions will swear before an official to take all the affidavits they served the responding party or attorney. Furthermore, an assignee, assuming any, states when they did and what records they gave them.

Child Custody Rules

Divorce comes under the radar of every couple, but when you have a child, you need to give thought to Child Custody Rules.

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Child custody means the care, control, and support of a child. Most of the time, biological guardians have the legitimate right to form choices around their child’s welfare, including their education, residency, etc.

However, if the parents are in a dilemma and cannot settle down with who will take custody or the court finds the parents unfit for the decision. In that case, family law works with the legal representative and helps in taking the decision.

Factors that come in the “Best Interests of the Child” Section of the Divorce Act are:

  • each parent’s capacity to supply for the child’s needs both monetarily and emotionally, 
  • the relationship each parent has with the child, 
  • your child’s wishes, if they are of an age of development to communicate to the court their wishes,
  •  if you have more than one child, the court ordinarily favors keeping them together.
  • time accessible to spend with the children (working hours), 
  • interference of one parent with the other parent’s relationship with the child.

The court will utilize numerous incredible components to determine the most relevant results for a child. But, in any case, three cardinal rules mostly prevail.

Three Cardinal Rules

1) Whether one parent is full-time or not: Stay-at-home mothers usually gain care of the child over a working spouse. This assumption is upon the truth that, particularly for youthful children, the court likes to put children in an environment where the parent is often around. 

2) Set up the status quo: Family law Courts moreover see what arrangements already exist. As a result, it is often called the status quo. Thus, if the child’s living performance is working well, the court may not need to form enormous changes.

3) Primary Caregiver: If you can show that you have been the primary care provider for a child. At that point, the law will typically presume that you are best to take care of the child in the future.

Can you change child custody orders/agreements?

Typically, a court decision on child custody is legitimate until the child turns 18. After that, however, the judge can change the court’s choice. Likewise, guardians can agree to changes to child care if their circumstances change over the long run. 

 Child Custody Orders and Agreements are only feasible if your lawyer can prove something many refer to as a material change in the condition. Therefore, be cautious about consenting to authority plans. Once you have them on paper, it is not easy to change them.

Material Change in Circumstances and Custody 

The guardians did not examine a material change in conditions when they entered into an understanding or an order related to custody or parenting time. It implies that you should demonstrate that something uncommon or uncontemplated has happened, which requires an adjustment of the custody plans. The change should be significant and dependable.

When can a judge change child custody?

Guardians applying for a change in the custody of care or access order must meet the threshold requirement to exhibit a material change in the conditions influencing the child. To complete that edge, the judge should be satisfied with: 

  1. modification of the situation, means, necessities, or requirements of the child or
  2. which physically influences the child, and 
  3. which was either not predicted or couldn’t have been sensibly indicated by the judge who made the underlying request earlier

Some examples of Material change in custody are:

  • When parents become alcohol addicts or drug addicts,
  • Physically, mentally and emotionally abuse the child,
  • A parent is sick,
  • The child is not happy with the parents they live with
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Canadian case law on changing decision-making responsibility and parenting time

Terms of the Divorce Act changed on March 1, 2021 – 

The federal Divorce Act uses words similar to those in the BC Family Law Act.

  • Decision-making responsibility and parenting time replaced “custody.”
  • Contact and parenting time is replaced with “access.”

Decision Making

There is a “Canadian case law” on changing the decision-making responsibility and parenting time. In 1966, The Supreme court of Canada passed a judgment called “Gordon v. Goertz.” Under the judgment, the court said the parents should prove that the ‘material change threshold’ was met and a need to make a change in the previous order.

Decision-making responsibility is a type of parenting arrangement that takes place during the divorce process of both parents. These kinds of provisions come into the law so that the child does not have to suffer. Thus, decision-making responsibility protects the child’s rights and makes sure that the child does not face the loss of divorce and feels safe and loved. 

In this, the court assigns the responsibility to one or both parents. The parents can make significant decisions for the child. These decisions are generally related to education, health, upbringing, etc. As a result, a child may not be able to make proper decisions about their life. 

Generally, it is divided equally among both parents. 

Parenting Time

Along with decision-making responsibility, there is another form of parenting arrangement, i.e., parenting time. 

Parenting time means the amount of time a child spends in your care. During this time, a child may not be physically present with you, but you still have the child’s responsibility. You should know how your child is doing in school. Is the child healthy both physically and mentally? The court decides how much parenting time one parent gets. The court may refuse to give parenting time to the parent if the court feels unsafe for the child. 

  1. Shared parenting time
  2. Split parenting time
  3. Supervised parenting time

There may be a need to make specific changes in decision-making responsibilities and parenting time. But, first, you need to know under which act your parenting arrangement comes. There are two laws under which help in forming your parenting arrangement.

One is the “Children’s law reform act,” and the other is the “Divorce Act.” Any parent can apply their appeal in the court that they want to make changes to the previous order. This type of application is called a “Variation Application.” 

A Skilled Lawyer Can Guide You

The variation cycle is both tedious and complex and may require lawful ability. An accomplished legal counselor can be an essential asset if you think about changes in existing orders. It’s best to take help from a professional family lawyer to help you complete portrayals of drafting or counseling administrations.

 Are you the one who’s looking forward to moving out from the toxic marriage, or securing your child’s life by taking custody? Don’t worry we’re here to save you by giving you the options to pick up the best family lawyers who are specialized in handling cases of divorce, child custody, child support, and what – not related to family law. Check out the best divorce lawyers in Ontario

Thus, if you need a rational approach, then it’s better to consult a lawyer.

Also Read: 5 Mistakes That Can Hurt Your Child Custody Case