Material change in circumstance

Friday's decision in Persaud v. Garcia-Persaud, 2009 ONCA 782 deals with variation of a custody and access order.

The Court sets out the condition precedent to such an order being made (material change in circumstance) and then describes when that condition precedent is met.

Absent a material change in circumstance the motions court lacks jurisdiction to vary a custody and access order.

The Court of Appeal writes:

[3] To begin with, the motion judge was without jurisdiction to make the order in question. As 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.). The 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. In the present case, no such finding was made. Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.

[4] 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. 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. Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge's numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.