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Can Courts Reverse a Custody Agreement?


Breaking up with a partner is never easy but it is especially complicated when there are children involved because the separation comes with the extra step of needing to determine custody. Reaching common ground regarding shared children can be complicated but once a child custody agreement is in place, that agreement is legally binding and both parents are generally required to share the children according to the terms of that agreement. However, as the lives and circumstances of separated or divorced parents change, child custody orders may also be changed. As stipulated in the Children’s Law Reform Act, a court may, upon application, supersede an extra-provincial order in respect of custody of or access to a child where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

But why would an agreement need to be changed?

A Recent Custody Reversal Example

In A.M. v. C.H., the case centered around a 14-year-old boy who had been showing increasing resistance to visits with his father. The undisputed evidence in that case showed that the mother of the boy deliberately kept the boy separated from her ex-husband after being given full custody in their divorce. At one point, she had even abruptly moved herself and the boy away in an effort to cease the remaining contact between them.

A bold October 2018 order, the one before the Ontario Court of Appeal, had reversed the custody order. The trial judge gave the father custody for a trial period of six months in the hope that father and son could reconcile with the help of reunification therapy. The trial court also restricted the access of the mother and her family for that period. Ultimately, this custody reversal was upheld on appeal, with the court concluding that the best interest of the child standard had been properly considered. In considering the custody reversal order, it is noteworthy that the court considered the short-term disruption in the boy’s life and the fact that his relationship with his mother was also unstable. Other facts that swayed the conclusion in this case included:

  • The parental alienation began before the separation, with the mother refusing to allow the father to eat dinner or watch tv with them
  • The mother outright refused to try to coparent with the father
  • The mother had failed to comply with previous attempts at therapy

Do You Need to Talk to Someone About Your Custody Agreement?

Once a court establishes a custodial arrangement, it is often difficult to reverse the order in favor of the other parent. However, difficult doesn’t mean impossible. If you believe that there has been a change in circumstances that shifts how the current custody agreement would be viewed by the courts in regard to the best interest of a child you share with an ex-partner, you may have legal options. As the Mississauga family attorneys at Zagazeta Garcia LLP, we have significant experience successfully representing people from a variety of backgrounds in a wide range of circumstances. Contact us today to begin discussing your next steps.


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