Importance of the Material Change Test

The Ontario Court of Appeal in Persaud v. Garcia Persaud 2009 ONCA 782 found at http://www.ontariocourts.on.ca/decisions/2009/november/2009ONCA0782.htm is an important reiteration of the requirement of Judges to find a material change in circumstances when varying a Final Order.

In this case, the Motions Judge changed his own Final Order and flipped custody between two parents. This court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 52 R.F.L. (6th) 239 (Ont. C.A.).

A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 13.

The Court found that none of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel.

Another important factor is that it was not clear to the Court how these factors could have been determined, given the significant conflict in the affidavit evidence of the parties. In such circumstances, a variation motion cannot be properly determined on affidavit material. As this court has stated, resolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called. See this court’s decision in Schnarr v. Schnarr (2006), 22 R.F.L. (6th) 52.

For the preceding factors, the Court took the position that the original custody Order and did so over time.

All in all a good decision from the highest Court in Ontario.