Varying a custody access order: When you can and when you can't

Is there a situation where parties are blocked from seeking variation of a custody or access order? Yes. Elizabeth Ramsden in LAO LAW’s The Bottom Line: A weekly summary of new cases in family law (November 11, 2009) summarizes this issue:

Even where both parties request a variation of a custody or access order, the court is without jurisdiction to vary the order unless it makes an explicit finding of a material change in circumstances since the previous order was made. A material change is one that:
(1) amounts to a change in the condition, means, needs or circumstances of the child and/or the parents’ ability to meet the child’s needs;
(2) materially affects the child; and
(3) was either not foreseen or could not have been reasonably contemplated by the judge who made the original order.
If an applicant fails to meet this threshold requirement, the inquiry can go no further: Persaud v. Garcia-Persaud, 2009 ONCA 782 (Laskin, Gillese and Juriansz JJ.A.), ¶ 4, [citing see Gordon v. Goertz, [1996] 2 S.C.R. 27, at ¶ 13 and Litman v. Sherman (2008), 52 R.F.L. (6th) 239 (Ont. C.A.)].

As the Court of Appeal noted, "[t]he matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation." [Emphasis added.]

The Court went on to note that where there is “significant conflict in the affidavit evidence of the parties … a variation motion cannot be properly determined on affidavit material. … [R]esolution 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”.