Material Change in Circumstances Test Does Not Apply: The “material change in circumstances” does not apply to “without prejudice” orders. (Musheyev v. Gilkarov, 2016 ONSC 4120 at paras 14-17) [1]
Chappel J. made the following observations in para 23 in the decision of Damaschin-Zamfirescu v. Damaschin-Zamfirescu: “The intention of temporary temporary without prejudice orders is to create an interim solution for an even shorter period of time than from the date of the order until trial. Having regard for this intention and the other considerations discussed above, the “substantial change in circumstances” test is not appropriate and does not apply.”(Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 at para 23.) Although Chappel J. referred to spousal support, Charney J. in the Musheyev v Gilkarov confirmed that the same observation can be made with respect to the without prejudice orders in family law. Such observations highlight the importance of a material change in relevant circumstances. This emphasizes the significance of any material change.
Maximum Contact Principle – Parenting Time
Parenting Time Consistent with Best Interests of the Child/”Maximum Contact” Principle: Section 16(3) of the Divorce Act identifies the factors relevant to the determination of the best interests of the child for the purposes of parenting time. Considering any material change in status is crucial for parenting decisions.
Particularly, s. 16(6) is a new wording of the “maximum contact” principle, which has always been viewed by the Courts to the extent of the children’s best interests. (Divorce Act, RSC 1985, c 3 (2nd Supp), s. 16 and C.C. v. S.C., 2021 ONSC 3899 at para 118.). The principle of “maximum contact” continues to apply and previous cases relying on this principle continue to be relevant. (Kirichenko v. Kirichenko, 2021 ONSC 2833 at paras 56-58.).
Section 16(2) of the Divorce Act stipulates that the court “shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”[6] (Supra, note 14 (Divorce Act) at s. 16(2).). This consideration includes any material changes affecting the child’s welfare.
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