Is a Kid's Preference a "Material Change"?
I have written about the concept of “material change”, which is the threshold criterion for a court being able to vary a previously-made child custody order.
From a legal standpoint, “material change” must involve some unforeseen circumstance or development and – once that has been established – the court can then consider where there has been a change that affects or is likely to affect the best interests of the child.
The examination of the child’s best interests, in turn, involves consideration of several factors, including (among other things) the existing custody arrangement, the disruption to child if there is a change in custody, and the child’s own views.
In a recent case called Gloger v. Gloger (2014), 2014 ONSC 379, the court grappled with a simple question: whether a child’s views and preferences as to the time spent with each parent can amount to a “material change” for the purposes of the test.
The court concluded that they can. In that case, the court heard evidence that the 13-year-old daughter wanted to spend more time with her father; this was a new development since the original order that had been made a few years earlier, which granted joint custody to both parents but full-time residence with the mother.
The court pointed out that although a child’s views and preferences are not determinative, they should be given significant weight in a case involving a young teen.
The court accordingly varied the original custody order, to the effect that the daughter would live half the time with each parent on an alternating bi-weekly schedule.
Has there been some change since your original custody order was made? Has your child changed his or her expressed preferences as to how custody should be structured? Contact us for a free consultation.