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How do I bring a motion to change a court order for child custody, access, or parenting?

You or your partner may want or need to change your court order because of changes to your situation. For example:

If you and your partner agree to change your parenting plan or separation agreement, you can make a new agreement that deals with the changes to your situation.

If you agree to change a court order, you can go to court and get a new order based on your agreement.

If you and your partner cannot agree, you may have to go to court to bring a motion to change. You must show a material change in circumstances. This means you have to show that your situation has changed so much that your order needs to be changed to deal with those changes.

There are Family Law Rules that tell you what is needed at every step in a court case. Rule 15: Motions to change a final order or agreement tells you what you need to do.

You can talk to a lawyer who can tell you if facts exist that may convince a judge that your separation agreement or court order should be changed.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

There are Family Law Rules that tell you what is needed at every step in a court case. Rule 15: Motions to change a final order or agreement tells you what you need to do.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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Next Steps: 

1. Figure out if there has been a significant change

Look to see if you or your partner's situation has changed.

If you have to go to court, the court will only make an order changing you custody and access arrangement if there has been a significant change in circumstances.

You have to show the judge:

  1. There has been a change that affects your child or the ability of you and your partner to meet the needs of your child.
  2. The change must greatly affect your child.
  3. The change is something that could not have been predicted at the time the original order was made.

If you cannot prove a significant change in your or your partner's situation, the court will not make the change.

Some examples may include:

  • The conflict between the parents has gotten worse over time.
  • The parent with custody is always interfering with the access parent's ability to spend time with the child.
  • The child's new school schedule conflicts with access arrangements.
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2. Fill out your court forms to start the motion

You need to fill out:

  • Form 15: Motion to change, where you tell the judge the orders you are asking for.
  • Form 15A: Change information form or Form 14A: Affidavit, where you give your reasons and evidence for the changes you're asking for, and attach a copy of your existing order. These forms must be sworn or affirmed. This means you are promising that the information in the document is true. It is against the law to not tell the truth when swearing or affirming an affidavit.
  • Form 25: Order, where you write the orders you want the court to make. Be specific about which terms of the existing order you're asking to change.
  • Form 35.1: Affidavit in Support of a Claim for Custody and Access, where you answer some personal questions about your family situation and tell the court about your suggested parenting plan.
  • Updated table of contents, that lists the documents you're adding to your continuing record.

If you're also asking for a change to support, you may need to fill out:

You can get family law court forms from the courthouse or online. They are available in French and English.

Take your forms to court

Once you have filled out your forms, you must have your motion to change issued by the court. This means the court clerk signs, dates, and stamps them and gives you a court date.

You must usually go to the same level of court that made your court order.

There are three courts that deal with family law issues in Ontario. These are the:

  • Ontario Court of Justice
  • Family Court branch of the Superior Court of Justice
  • Superior Court of Justice

So, if the Superior Court of Justice made the order, you must go back to a Superior Court of Justice in the jurisdiction that your child currently lives to change it.

Give your partner a copy

You must serve your partner with a copy of your documents by special service within 30 days of having it issued. Rule 6: Service of documents tells you how to serve your documents. There is also a guide on how to serve documents.

You can't give them your documents directly. You have to get a family member or friend who is at least 18 years old or a professional process server to give your partner the documents. Or, you can leave them with your partner’s lawyer.

Whoever serves the documents on your partner must fill out Form 6B: Affidavit of Service. In it, they say when, where, and how they served your partner. The form proves that your partner got a copy of your documents and knows that they have to respond to them.

File your documents

You need to go back to the courthouse once your partner has been served, to file your documents and Form 6B: Affidavit of Service in your continuing record. You do this at the court counter, with the help of the court clerk.

There is a guide on how to file documents.

3. Get your partner's response

You partner has 30 days to fill out, serve, and file their response. If they don't respond, the court may make an order based on your documents alone.

Your partner agrees with you

They fill out a Form 15C: Consent Motion to Change. This form must be signed in front of a witness. You and your partner cannot witness each other's signatures.

When you sign it, you're confirming that you:

  • are aware of your right to talk to a lawyer
  • know that signing the form may result in a final court order

Your partner may also fill out a financial statement unless you both agree not to. But, you and your partner may need to provide proof of income in some circumstances. For example, if you're also changing child support and there are special or extraordinary expenses.

 

If your partner doesn't agree with you

They fill out Form 15B: Response to Motion to Change, where they tell the court why they don't agree with you or ask the court to make additional or different changes.

If you're also asking for a change to support, your partner may also fill out:

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4. Continue with the court process

The court process for motions to change is similar to starting a family law case.

This family law court process flowchart explains each step in a family law court case. It tells you what happens and what you have to do if you start a court case or if you're responding to a court case your partner started.

A motion to change may involve a first court date, if your case is at the Ontario Court of Justice or the Family Court Branch of the Superior Court of Justice, unless it includes a claim for divorce or dividing property.

If you're at the Superior Court of Justice, you'll need to ask the court clerk to schedule a case conference.

Some locations of the Superior Court of Justice and Family Court branch of the Superior Court of Justice have dispute resolution officers (DRO). They are not judges but are trained to help people resolve their issues.

In locations where the DRO program is offered, motions to change come before a DRO first, instead of a judge. DRO's cannot make orders. But they can help you and your partner talk about the issues and come to an agreement that can be confirmed by a judge.

A judge looks at your situation and the best interests of the child test to make decisions about custody, access, and parenting. Judges usually assume it's better for a child to have a relationship with both parents after they separate or divorce.

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Reviewed: 
September, 2015

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