L. Variation and Rescission of Interim and Permanent Custody and Access Orders

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 560-571

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On the issue of the variation of interim custody orders, Schwann J, of the Saskatchewan Court of Queen’s Bench, observed in Rue v Babyak:

15 As a starting point, this Court’s reluctance to vary interim custody orders must again be emphasized. In the absence of any credible evidence the child is in danger or compelling evidence calling for a change, no change should be made to interim orders. (See MacEwen v. MacEwen, 2004 SKQB 271, [2004] S.J. No. 419 (QL); Salisbury v. Salisbury, 2011 SKQB 258, 376 Sask. R. 276 and Guenther v. Guenther (1999), 181 Sask. R. 83, [1999] S.J. No. 120 (QL) (Q.B.)). In fact Guenther goes so far as to describe it as a ". . . reversible error in law to vary interim arrangements pending trial . . ." (para 8).

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16 The purpose of an interim custody/access order is to stabilize the parenting situation and the children’s lives, usually by preserving the status quo, in order to provide an acceptable solution to difficult problems pending trial. For that reason, and to bring finality to litigation, interim orders are not lightly disturbed. As stated in Harden v. Harden (1987), 54 Sask. R. 155, 6 R.F.L. (3d) 147 (Sask. C.A.) " . . . interim custody is just that: a makeshift solution until the correct answer can be discovered . . . designed to minimize conflict between parents and cause the least harm to the child and determination of the cause."²⁶⁰And Boswell J, of the Ontario Superior Court of Justice, stated in Lamoureux v Lamoureux:

29 I am also governed by a number of principles that have developed in relation to motions to vary interim orders. Interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide "a reasonably acceptable solution to a difficult problem until trial": see Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.) per Sachs J.

30 Variations of temporary orders are not encouraged. They should not become the focus of the parties’ litigation: Cutaia-Mahler v. Mahler, 2001 CarswellOnt 3054 (S.C.J.) per Benotto J. There is, therefore, a heavy onus on a party who seeks to vary a temporary order - essentially replacing one imperfect solution with another imperfect solution - pending trial: Boissy v. Boissy, 2008 CarswellOnt 4253 (S.C.J.) per Shaw J. A substantial change in circumstances is typically necessary before a variation to a temporary order will be granted: Biddle v. Biddle, [2005] O.J. No. 737 (S.C.J.) per Blishen J.²⁶¹The above opinions may be compared to the following opinion of Campbell J, of the Prince Edward Island Supreme Court, in GER v HJR:

The practice of law has evolved greatly over the last number of years. The time between the start of an action and the trial, which used to be measured in months, is now often measured in years. Considerably fewer matters ever reach the trial stage. Interim orders, which used to be viewed as being "temporary" have now become the de facto final orders in many cases. While parties are free to go to trial in any case, the vast majority choose not

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to do so. Cost is often a significant factor in those decisions. The desire of the parties to gather evidence by way of an independently prepared home study is another factor which extends the time required between any interim order and an order following trial. Interim orders, varied from time to time as the need arises, have largely replaced the so-called "final" order after trial. Having stable and predictable custodial arrangements can be of great value to a child. However, given the significant changes in the use and duration of "interim" orders, courts must retain the ability to adjust interim orders to reflect developments impacting the best interests of the child. Preservation of the status quo should not be seen as a goal in and of itself, but only as one factor, albeit a significant one, affecting the best interests of the child.²⁶²Although it is rare for a motions judge to vary an interim order granted pursuant to the Divorce Act, a judge always has the jurisdiction to decide the custody of a child as it relates to the best interests of that child, particularly where it can be demonstrated that there has been a change of circumstances raising concerns about the child’s welfare. However, there must be compelling reasons that militate in favour of immediate action rather than waiting for a hearing on the matter and a final order.²⁶³There is no section in the Divorce Act that expressly authorizes the court to vary an interim order. If it was the intention of Parliament to prohibit such variation orders, it surely would have included a provision to indicate its clear intention. Where there is a gap in the legislation that the court is required to apply, the parens patriae jurisdiction of the court may be exercisable. The court may draw upon its inherent jurisdiction whenever it is just or equitable to do so, and the exercise of the court’s inherent jurisdiction to vary an interim order does not contravene any provision of the Divorce Act.²⁶⁴Although interim custody orders ordinarily preserve the status quo and any subsequent variation is unusual in the absence of evidence of risk to the child or some other compelling reason,²⁶⁵special circumstances may warrant such variation. In Lewis v Lewis,²⁶⁶the mother was granted sole custody of the children and the father supervised access pursuant to an interim consent order triggered by the mother’s allegations of abuse. Subsequently, the court rejected these allegations and the mother’s contention that she was a pawn who was being controlled by the father. For example, the court found that

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the parents’ involvement in "phone sex" and watching pornographic movies was a joint and consensual adult activity that did not affect their parenting abilities or the best interests of the children and was therefore irrelevant to the issues of custody and access. Finding that an order for joint custody would be unworkable because of the parents’ inability to communicate, the mother was granted sole custody of the children and the father was granted unsupervised access on specified terms.

Section 17 of the Divorce Act regulates the jurisdiction of the court to vary, rescind, or suspend a permanent custody order or any provision thereof. It involves a two-stage analysis. Before entering on the merits or an application to vary a custody order, the judge must be satisfied of a change in the condition, means, needs, or circumstances of the child, and/or the ability of the former spouses to meet the parenting needs of the child. 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 who made the order that is sought to be varied.²⁶⁷If an applicant fails to meet this threshold requirement, the inquiry can go no further.²⁶⁸A court must make a finding of a material change in circumstances even when both parents request a variation.²⁶⁹If the threshold condition of a material change is established, the court should reassess the parenting arrangements in light of all the circumstances existing at the time of the variation proceeding. The court should consider the matter afresh without defaulting to the existing arrangements and must make its determination having regard only to the best interests of the child.²⁷⁰Although section 17(5) of the Divorce Act directs the court to consider the child’s best interests by reference to the material change in

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circumstances, the inquiry cannot be confined to that change alone, isolated from the other factors bearing on the child’s best interests.²⁷¹Section 17(1)(b) of the Divorce Act empowers a court to grant an interim order varying or suspending the provisions of an existing permanent custody/access order. A distinction is to be drawn between the existence of such jurisdiction and the exercise of such jurisdiction. Before granting an interim variation order, the court must be satisfied (1) that a prima facie case has been made out pointing to a change of circumstances of sufficient import as might well result in variation of the custody/access order at the final hearing; and (2) that the best interests of the child lie in making an interim order of the nature of that being contemplated. The court should also have regard to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests. The court should exercise its jurisdiction to grant an interim variation order sparingly and solely in the best interests of the child, bearing in mind that a final order will be forthcoming and even a temporary change can be unsettling.²⁷²Applying these principles to the facts in Dorval v Dorval,²⁷³wherein the interim variation order prohibited the mother from relocating the child, the Saskatchewan Court of Appeal found no tenable reason for interfering with the order. Addressing the incidental question of appeals challenging interim orders of limited duration, the Saskatchewan Court of Appeal stated that, while a right of appeal exists, the appellate court will exercise its powers sparingly and only in extraordinary circumstances. The reasons for this are obvious. Such appeals generate additional costs and delay, even when they are heard on an expedited basis, whereas it is in everybody’s best interests that the matter proceed to a final determination as soon as is practicable. The judgment in Dorval v Dorval does not purport to resolve the "controversy" relating to the interim variation of spousal support orders. It rests content with the statement that "even in those cases in which it has been held that the courts are not...