Can a Parenting Order be Changed if You Gain the Flexibility to Work From Home?

Brothers playing with their toys at home representing a change in parenting schedules if one parent works from home

Written on behalf of Shariff & Associates

Separated parents can find it challenging to be active, raise children, and balance their employment responsibilities. When parents create a parenting plan or a judge decides on an order governing decision-making responsibility or parenting time, the schedule needs to be realistic and account for limitations.

However, a child’s needs should be prioritized. A parent’s ability to work from home may provide flexibility that accommodates parenting needs. However, this workplace arrangement may not constitute a material change in circumstances for a court to change an existing parenting order.

Change in Circumstances Needed to Change a Parenting Order

Section 17(5) of the Divorce Act deals with variations of parenting orders. It states that before a court varies a parenting order, “the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order.” In Gordon v. Goertz, the Supreme Court of Canada set out a process for motions to change parenting orders:

  1. The party applying to change the parenting order must demonstrate that there has been a material change in the circumstances affecting the child.
  2. If the threshold is met, the court commences a new inquiry into the best interests of the child, “having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.”

Importantly, any change alone will not be enough to justify a variation, as courts have explained that “the change must materially affect the child, the parents, or both.” As Justice Chappel noted in M.A.B. v. M.G.C., this threshold ensures that parties do not initiate litigation whenever minimal changes occur.

Flexibility to Work From Home On Its Own is Not a Material Change

In Kapadia v. Kwok, the applicant’s father brought a motion to increase his parenting time. The child primarily resided with the respondent during the school year, but the child spent equal time living with each parent during the rest of the year. The father indicated he now had the flexibility to work from home and claimed this constituted a material change in circumstances under section 17(5) of the Divorce Act. He also argued that seven and a half years had passed since the final order had been issued and that the parenting arrangements should reflect that the child was older. He specifically asked for equal parenting time with the child during the summer, beginning immediately and during the school year, effective when the child commenced grade 7. The respondent claimed that she was the primary caregiver and that the parenting plan they had been following enabled both parents to spend time with the child within a stable routine. She disputed the claim there had been a material change in circumstances. She was willing to expand the father’s parenting time on alternating weekends by four hours and agreed to equal parenting during the summer vacation. However, she suggested a significant expansion of regular parenting time would disrupt the child’s routine.

The judge noted that there must be a material change in circumstances before there can be a variation since the prior order was made. In Roloson v. Clyde, the court stated that a change in circumstances could “be considered “material” if it is significant and long-lasting.” In the father’s motion, he only identified one change: that he now had the flexibility to work from home. Justice Faieta found the father had not discharged his onus to show there had been a material change in circumstances. There were no details regarding his flexibility at work “nor an explanation regarding how this amounts to a material change of circumstance.” Moreover, the fact that the final order was granted seven and a half years ago was insufficient. The judge cited Brown v. Lloyd, which held that the increase in a child’s age and maturity “did not “automatically” constitute a material change in circumstances.” The motion to change was dismissed.

Courts Maintain Focus on the Child’s Best Interests

Daly Spencer v. Spencer was concerned with an interim parenting order, and the question was whether the father should be granted additional parenting time and when the time should be made available to him. The father sought an equal division of parenting time, while the mother’s proposal would have increased the father’s parenting time by only 3.5 hours each week. Justice Price looked at the outcome of the parties’ earlier proceedings, in which it was accepted that the mother was the parent primarily responsible for meeting the children’s day-to-day needs. However, it was also true that the father assumed a greater parenting role during his parental leave. The judge believed that an appropriate order in this case should give “primacy to the children’s physical, emotional and psychological safety security and well-being by providing them with greater time with the father.” However, the judge could not agree that the father was entitled to equal parenting time. Courts have consistently held that children should have as much time with each parent as is consistent with their best interests. However, “maximum parenting time does not necessarily mean equal parenting time.”

The father explained that because he worked from home, he was available and could help the mother with parenting. He noted that during the COVID-19 lockdown, he worked from home and cared for the children during the day, evening, and night. He explained that he continued to have flexible hours and would be available to meet the children’s needs. Section 16(1) of the Divorce Act clarifies that the child’s best interests need to be considered when making a parenting order, and subsection (3) sets out a list of factors when determining a child’s best interests. The judge concluded that balancing these factors should result in the father having more overnight parenting time on alternating weekends and some school weeks overnight and non-overnight parenting time. This gave the father time with the children while they were attending school and weekend time.

Develop Parenting Schedules That Prioritize Your Child’s Needs

A parent with the flexibility to work from home will not automatically constitute a material change in circumstances enabling courts to change a parenting order. The party seeking a change must provide details regarding their employment flexibility and clearly show how it amounts to a material change.

Stouffville Family Lawyers Advising Clients On Parenting Plans Plans And Schedules

If you’re a parent seeking to modify a parenting plan due to changes in your work arrangements, such as the ability to work from home, it’s crucial to understand the legal requirements and how to advocate for your child’s well-being effectively. Our experienced family law lawyers can help you navigate the complexities of family law and ensure your child’s needs are prioritized. Contact us online or by calling 905-591-4545 today.