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An Ontario court recently considered a contested interim parenting arrangement. In making a final decision on care and control of the child in question, the court had to determine what the status quo was in relation to custody and access of the child prior to her parent’s separation.

What Happened?

The party’s relationship began in January 2011. The child question was born in July 2014. The parties married in April 2015, and separated in May 2016.

After several motions filed by both parties, they obtained an interim order outlining a schedule for care and control of their child post-separation. This order was subsequently contested. Throughout the later proceedings, the wife testified that the husband had problems with alcohol and that he was abusive towards her. She claimed she was the child’s primary caregiver. The mother wanted the parenting “status quo” to continue.

In contrast, the husband brought in friends and family to testify to his character. These friends and family (including the wife’s sister) described him as an excellent father and all deposed that he had no issues with alcohol or domestic violence. Evidence was provided about the “definite bond between father and daughter that is very strong”, that the daughter “idolizes her daddy”, and that the husband should be involved in all aspects of the daughter’s life. The father sought an order for joint custody, wanting shared parenting on either a split week or week on/week off basis.

Custody, Access, and the Status Quo

The legal principles applicable to custody and access and set out in s.16(1) of Divorce Act and section 24(2) Children’s Law Reform Act.

The Divorce Act outlines the factors to be considered in making a custody and access order, whereas the Children’s Law Reform Act outlines factors to be reviewed in determining what is in the best interests of a child.

In addition to the factors outlined in legislation, which a court must consider in making decisions with respect to children, a court must also determine what the “status quo” is regarding custody and access.

With respect to what constitutes the “status quo”, the court noted:

In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation… This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties…In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]

The Court’s Decision

The court determined that, based on the circumstances in this case, the “status quo” as asserted by the wife was not determinative. There had not been clear and unequivocal evidence that the parties had agreed to a different decision-making and residence arrangement following their separation. For the purposes of the dispute between the parties, the court found that the “status quo” was that which existed prior to separation.

The governing criteria in this case, as in all other family law cases involving children was the best interests of the child. Here, the court was satisfied on the evidence of the emotional tie between the father and daughter. There was no real issue raised with respect to the father’s parenting ability.

As such, the court concluded that it was in the daughter’s best interest that parenting be shared equally by the parents, and there was no need for a custody order. The court set out a temporary shared parenting schedule as follows:

  • the husband will have the child from Monday after daycare until Wednesday morning to daycare;
  • the wife would have the child from Wednesday after daycare until Friday morning to daycare;
  • the husband would have the child from Friday after daycare until Monday morning to daycare;
  • thereafter, the same pattern would continue but with the other parent with a rotation each week;
  • all exchanges are to be at daycare.

The court also ordered that the parties share equally in the cost of daycare.

Lessons Learned

Decisions about custody and access can be some of the most emotional and challenging to make in the wake of a separation or divorce. It is often these decisions that may require the intervention and guidance of an experienced family lawyer. At Gelman & Associates, we can help guide you through discussions with your former partner about your children. Contact us today to learn how we can help protect your rights upon separation and to ensure that the best interest of your child are maintained. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.


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