The law recognizes that even the most fastidious of court orders may not address the disputed issues forever. This is why there are mechanisms in place which allow parties to alter their Final Order after it has been given. This is typically due to a material change in circumstances that makes the original order impractical.
To change a final court order in family court if the opposing party disagrees, you have to file a Form 15 Motion to Change. This process will initiate your request to change the final order. This request, as per the Divorce Act, requires proof of a material change in circumstances since the last court order. [1]
The leading case on this concept is Gordon v. Goertz, [1996] 2 S.C.R. 27. Here, the Supreme Court of Canada outlined a clear framework for identifying what exactly is a “material change in circumstances” that warrants court intervention.
Material Change in Circumstances: The Gordon v. Goertz Test
In Gordon v. Goertz, the Supreme Court of Canada introduced a three-part test to determine what constitutes a material change in circumstances. You need to satisfy the following elements to justify the proposed changes to the existing order:
- A Change in Condition, Means, Needs, or Circumstances of the Child and/or Parental Ability to Meet Those Needs:
- This criterion addresses substantial shifts in the life circumstances of the child or the parents that impact the child’s welfare. Changes can include adjustments in the child’s needs due to health, education, or social development. Shifts in the parents’ ability to meet these needs, such as financial stability or parental health, are also considered.
- Material Impact on the Child:
- The change must have a direct, significant effect on the child’s best interests. Merely convenient or desirable changes for a parent, such as a minor income adjustment or preference for a new residence, do not meet the threshold. The impact should be substantial enough to make the original order less effective or appropriate for the child’s current situation.
- Unforeseeable at the Time of the Initial Order:
- The change in circumstances must be something that could not have been reasonably foreseen by the judge who issued the original order. For instance, a significant change in income, an unanticipated relocation, or a sudden health concern would meet this requirement. These changes alter the original foundation upon which the initial order was based.[2]
Gordon v. Goertz – Final Thoughts
The Gordon v. Goertz test acts as a threshold requirement. If these three factors are not met, the motion to change will be dismissed. Only once the court is satisfied that a material change has occurred will it proceed to assess what adjustments to the order would best serve the child’s interests.
This threshold requirement was further refined in the case of Licata. The courts stipulated that in addition to the above, the material change must be “significant and long lasting.”[3]
It should be noted that just because there has been a material change, it does not mean that a court will agree that that change warrants the alterations being requested.
Examples of Qualifying Material Changes
In practice, some common examples of situations that could qualify as a material change under the Gordon v. Goertz criteria include:
- Parental Relocation: When a parent moves far enough to interfere with established access or custody arrangements.
- Changes in Parental Health: Physical or mental disabilities that impair a parent’s ability to care for the child.
- Substance Abuse: If a parent develops an issue that affects their fitness or stability, potentially endangering the child’s environment.
- Significant Financial Shifts: Job loss, retirement, or substantial income changes that alter a parent’s ability to contribute to child support.
- Remarriage of a Parent: This change in family dynamics may affect the stability of the child’s environment. It may also shift household responsibilities.
These examples illustrate the type of unforeseen, significant changes that courts may view as warranting a reassessment of the original order.
Filing a Motion to Change: Procedure and Documentation
Once it is determined that a material change has occurred, the next step is to file a motion with the court. This process involves several forms and procedural requirements:
- Motion to Change Form (Form 15): This document is necessary to outline the existing order, specify the requested changes, and provide the grounds for these modifications.
- Supporting Affidavit (Form 35.1/35.1A): If the changes involve decision-making and parenting time, a form 35.1 must be filed. This form provides a detailed explanation of how the proposed changes would impact the child’s best interests. Additionally, a 35.1A must also be filed where there is a history of Children’s Aid Society involvement in the matter.
- Financial Statement (Form 13): If the modifications concern child or spousal support, a financial statement is necessary. This enables the court to adjust support obligations based on updated financial information.
Procedural Steps and Deadlines
Once the motion to change is filed, the opposing party has 30 days to respond. If the opposing party does not serve and file responding materials by this deadline, the moving party may be permitted to proceed with their Motion uncontested.
If the responding party agrees with the proposed changes, both parties can file a Consent Motion to Change Form (Form 15C). This allows them to proceed without further court action. However, if there is disagreement, the responding party must file their own affidavit and a Response to the Motion to Change Form (Form 15B). This form explains their objections. The court will then review the filings to determine if the original order still serves the child’s best interests or if the requested modifications are warranted.
Practical Considerations for Families
Managing a motion to change can be complex and requires adherence to strict deadlines and procedural steps. Given the high evidentiary threshold set by Gordon v. Goertz, a party seeking a modification must be prepared to present clear, compelling evidence of the material change and its impact on the child. As such, legal support is often essential to ensure that the requisite materials are both thorough and in line with the child’s best interests.
At Progressive Legal Solutions our experienced family law lawyer will guide clients in completing the required forms accurately. We help gather evidence to substantiate the change and manage deadlines to avoid delays.
[1] Divorce Act, s. 17(4)
[2] Gordon v. Goertz, 1996 CanLII 191 (SCC), at Para 10-13.
[3] Licata v. Shure, 2022 ONCA 270.
By Caidan Ubell