Persaud v. Garcia-Persaud: Variation of Child Custody and Access Orders

This is a case from the Ontario Court of Appeal by the Mother to have the Order of a Motion judge over-turned. Following a Motion the Judge reversed a previous Court Order which caused the primary residence of the child to be changed from the Mother to the Father. The reasons for the ruling were said to be unclear, however the Motion Judge felt that the Mother had “baseless concerns” about her personal safety with respect to the Father and wanted further communication between the two to cease. It was for these reasons that the Motion Judge felt that the child’s primary residence should be changed. As the reasons of the Motion Judge were “sparse” it is difficult to know the exact reasoning behind the decision. It is possible that the Judge felt that the Mother was attempting to alienate the child from the Father, thus motivating the Judge’s decision.

The Ontario Court of Appeal takes this opportunity to remind us that a court will only have the jurisdiction to vary a previous custody and access order where a material change in circumstances has been demonstrated. Furthermore, a material change in circumstances is required even where both parties are seeking a variation to the existing Order. There was no finding of material change during the Motion and as such, the Motion Judge did not have the requisite jurisdiction required to change the original Order.

The Court further explains that Affidavit evidence alone was relied on at the Motion to provide the Court with evidence to support each party’s claim. This was inappropriate as there was significant conflicting evidence provided in each respective Affidavit. In such circumstances, the conflict needs to be resolved through a trial where viva voce evidence can be heard by the Court.

Based on the foregoing, the Court allowed the Appeal, thus overturning the Ruling on the Motion and restoring the original Order for custody and access. What is interesting about this case is the fact that the Court took into consideration the affect that changing the child’s residence for a second time in a short period would have on her. Thus, a transition period was built in to the Order to allow the child to slowly become used to the change in residences.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. I wholeheartedly agree with the Court of Appeal’s decision in this matter. It would be quite the slippery slope if litigants could have the residence of their child changed on a Motion based only upon Affidavit evidence and without the requirement of a material change in circumstances. This would have set a potentially dangerous precedent, and it is therefore very good that the Court of Appeal has overturned same. It is also noteworthy that the Court of Appeal built in a transition period for the child to return to residing with the Mother. It is easy for litigants and Judges to get so caught up in the exchange of allegations, and the children get forgotten, and their practical realities overlooked. I am glad to see that this has not happened here, as this could have otherwise been much more difficult for the child.

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