Summer holidays bring a change to routines. As the summer winds down there is often thought to keep the changes in place. This can mean changing primary residence of children before school results. Which in turn results in urgent motions to change primary residence before school starts. Last week, a decision from the Ontario Court of Justice addressed this issue.
Justice Pazaratz authored this decision and as often the case, it was very colourful. I don’t often quote directly from decisions, but I can’t portray his intent the way he can:
The pre-Labour-day “let’s change Johnny’s school” urgent motion has become somewhat of an unwanted annual tradition in family court. Sometimes it’s just the school. Sometimes it’s the city where the child is to live. Usually it involves an attempt to change the child’s primary residence from one parent to the other… Quite commonly, these motions arise when an access parent unilaterally decides that children shouldn’t be returned at the end of a summer vacation. And invariably this leads to “emergency” motions, and a flood of frightening – and entirely untested – affidavits and allegations… So every August (sometimes even September) judges receive these “the sky is falling” motions, in which one parent suddenly insists that problems which may have existed for years suddenly need to be resolved in days.”
Changing My Child’s School at the End of Summer Holidays
In this case, the parents married in 2003 and separated in 2013. They had three children, who at the time of the decision, were 15, 13 and 10. Immediately after separation, the parents agreed that the mother would move with the children from Ontario to St. Louis, Missouri.
Since 2013, the children continued to reside in St. Louis most of the year. Often the children spent about 9 weeks each summer with their father in Ontario. For this visit, the children arrived in Ontario on June 20, 2020, and were scheduled to return to their mother on August 9, 2020. On July 22, 2020, the father brought a motion to change the parenting arrangements and have the children live with him.
The father filed an affidavit and alleged his 15-year old child was not comfortable living with her mother in St. Louis. Allegedly the mother did not support the sexual orientation of the child. This caused the child to want to change her residence.
The father added that his house was better suited to care for the three children. He said he lived in a 5-bedroom house, while the mother lived in a small duplex. The mother also had two other children with her new husband, so the father said that the mother wasn’t able to properly care for all of the children.
The Judge declined to exercise jurisdiction as the children were primarily in St. Louis. All of the evidence needed to support the mother’s version of events were all in St. Louis. This included teachers, doctors and other support persons in the community. The result was the father was not successful in his application.
Changing Primary Residence of the Children Before School
The father was not successful with his application, but there is much to learn from the decision. Parents often struggle with requests from children to change primary residence. Sometimes it may be for good reason, sometimes not. If you are considering making an application to have your children move in with you, here are a few points for consideration when changing the primary residence of the children.
First, don’t expect a Judge to make a drastic change to the routine on short notice. A change in custody is a significant change for the children. This application needs to be made after much thought and reason and in the best interests of the child.
Making this change of primary residence on an urgent motion is not a good idea, unless it truly is urgent. For this type of situation, urgent means criminal charges laid by police, or involvement by Children’s Aid.
Second, ensure you have evidence that supports your application for change of the primary residence. While your perception may be that the other parent is awful, consider how you can prove this. Tangible evidence is necessary, so your opinion will not carry any weight. Effectively, if you say the other parent is awful and they respond they aren’t, the Judge will not make a drastic change.
Third, have a plan in place. Know where the children will sleep and where they will go to school to change the primary residence. Have clear evidence of this laid out for the Judge and you will increase your likelihood of success.
Fourth, give serious consideration to the needs of the children. Changing primary residence, cities or schools is not easy. While it may seem easy for the children to pack up and move, it likely isn’t as simple as it seems. Life-altering decisions should not be left to urgent motions. Children need stability and you need to support the children in that quest.
How to Make an Application to Change Custody and Primary REsidence in Ontario
The best advice I can offer is that a change of custody is not urgent, unless the evidence makes it urgent. If your evidence to make such a change relies on observations from years prior, it isn’t urgent.
Urgent applications to change custody means that there is one event that necessitates the application. Likely the only real evidence that requires an urgent application is when the child is in imminent danger. This will likely require police involvement, or Children’s Aid involvement. And simple involvement, such as an investigation, is not sufficient.
What is a Material Change in Circumstance?
Before a Judge will consider changing a custody arrangement, you need to prove there is a material change in circumstance. This means that something drastic has changed since the current Court Order was made. Some things that can prove a material change in circumstance are: an involuntary change in employment or a medical diagnosis for the children or a parent. These are life-altering events, so consider what your evidence is to begin the application.
If you can prove a material change in circumstance, the next hurdle is to examine the evidence you have. If the other parent is going to argue against your application, consider the strength of their argument. When you start making allegations of poor parenting, expect similar allegations in return. How you respond to the allegations will be important.
It is important to remember that allegations of poor parenting are very rarely helpful for the Judge. That may change if the evidence of poor parenting is in the form of opinion evidence from a parenting expert. Keep in mind that Judge’s don’t want to hear about all of your differences in opinion. It may be important to you, but if it has no impact on the best interest of the children, it won’t be important to the Judge.
How Much Does it Cost to Apply to Change Custody in Ontario
As with everything else in family law, the cost is wholly dependent on the reaction of the other parent. If the other parent simply agrees with your request, the cost is minimal. If the other side disagrees with everything you are saying, it is likely you are heading to trial.
Applications to change custody will not be successful on an urgent motion argued on affidavit evidence. The case discussed above is a perfect example. Swearing an affidavit stating the other parent does not support the sexual orientation of the child is not helpful. When the response Affidavit is the parent swearing that the child is supported, the Judge will not make any finding.
If the motion simply can’t be heard on affidavit evidence of change of primary residence and a trial follows, the costs rise significantly. Trials are expensive both financially and emotionally. Take a critical examination of the evidence you have prior to scheduling a trial. While you may really want a change in custody, be realistic of the outcome prior to making your decision.
I Want to Apply to Change Custody and Primary Residence in Ontario
If you are considering applying for a change in custody, or primary residence, consider obtaining some legal advice. These applications are not easy and effective legal advice at the beginning can save you a lot of stress.
Hearty Law provides legal services on all family law issues, including:
- custody
- access
- child support
- spousal support
- divorce
- separation
- primary residence
- property distribution
Contact Hearty Law today to schedule a virtual consultation. Either complete the contact form here, or send an email to toronto@heartylaw.ca or ottawa@heartylaw.ca.
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