Can a court vary a custody and access order where the child spends the preponderance of time resident with the custodial parent, with access to the non-custodial parent for a shorter time period?

Ontario, Canada


The following excerpt is from Larson v. Clinton, 2009 CanLII 23112 (ON SC):

Gordon v. Goertz dealt with an application to vary an existing custody and access order. It addressed typical circumstances where a child spends the preponderance of time resident with the custodial parent, with the child having access to the non-custodial parent for a shorter time period. This is distinct from circumstances where the arrangement more closely approaches joint parenting or joint custody, regardless of how it might be described. Nevertheless, as counsel for the mother emphasized, Gordon v. Goertz still requires that there has been a material change in the circumstances of the child since the last custody order was made before the court can consider the merits of the application even where the parents established a joint custody regime for the child, as in this case. This necessarily follows from subsection 17(5) of the Divorce Act which prevents the court from varying a custody or access order absent a change in the "conditions, means, needs or other circumstances of the child." Accordingly, the inquiry cannot proceed if the father is unable to show the existence of material change. Equally, however, it is important to always remember that the material change that must have taken place does not relate to the circumstances of either parent – it is exclusively focused on the circumstances of the child.

Other Questions


How is child support calculated when one parent has physical custody of a child and the parents share custody of another child? (Ontario, Canada)
How have courts interpreted a custody order or agreement regarding the residence of a child where the child lives in Canada? (Ontario, Canada)
Is a non-custodial parent of a child entitled to regular access to the child by one parent? (Ontario, Canada)
What is the test for a court to order a temporary order or custody order in a custody matter? (Ontario, Canada)
Does a custodial parent have to pay child and spousal support to the non-custodial parent of the child? (Ontario, Canada)
What is the test for a court to determine if a parent who has been ordered to pay child protection funds for the past 10 years will not comply with the terms of the court order? (Ontario, Canada)
When will a court order joint custody of a child where one parent professes inability to communicate with the other parent? (Ontario, Canada)
What is a parent's obligation to comply with access order if the child wishes to stay with the access parent? (Ontario, Canada)
When will the court order that a primary residence be located in a municipality where the child is primarily residence with one parent? (Ontario, Canada)
In what circumstances will a judge enforce a custody order where the child's residence is not the subject of the custody agreement? (Ontario, Canada)
X



Whitelogo nobg 300dpi sm


"The most advanced legal research software ever built."


Trusted by top litigators from across North America.