One of the most contentious issues in a Family Law case can be the determination of the issues relating to the children. When parents cannot agree about what parenting arrangements are in their children’s best interests, they often turn to the Court for a resolution.
Unfortunately, a family court case can easily take one or more years to make its way through the Court system from start to finish. When parents cannot agree on the parenting arrangements that should be in place while their case moves towards a trial, either party has the ability to ask the court to make a temporary Order implementing a parenting schedule by way of a “Motion”.
When presented with a parenting motion, the Court is required to assess what parenting arrangements would be in the “best interests of the child”. Generally, the judge is required to make a decision based primarily on untested and conflicting evidence from the parties. As a result of this, it is not unusual for a judge to come to the conclusion that the status quo (ie. the existing parenting arrangements at the time of the motion) are in the children’s best interests on an interim basis if the arrangements appear to be working for the children.
A recent example of the impact a status quo can have on a motion is seen in the case of Cole v. Barrett, which was determined on an interim basis shortly after the onset of the COVID-19 pandemic. In the Cole case, the father sought a Court Order affirming a parenting schedule that had been in place through informal agreement of the parties since at least November 2019. The Mother sought to revert to an earlier schedule, wherein the father had parenting time on alternate weekends and during the week when the Mother was working. In arriving at his decision, Justice McDermott indicates that while an interim parenting motion is determined based on the child’s best interests, there must be compelling evidence to disturb the status quo. Justice McDermott goes on to quote from the 2019 case of Elliott v. Filipova in which the Court indicated that the evidence must “clearly and unequivocally establish that the status quo is not in the child’s best interests”.
While the status quo may be given considerable weight in interim parenting decisions, parties should not view this as an opportunity to unilaterally impose a parenting regime that is in their favour, as was the case in the 2020 decision of Gray v. Canonico. In Gray, Justice Charney observes that although interim motions are determined based on the best interests of the children, the best interests at the interim stage is often determined based on the status quo. At paragraphs 39 and 40 of his decision, Justice Charney refers to various cases where the court discusses the importance of the status quo in making interim determinations around parenting.
Justice Charney goes on to note that the case law is “abundantly clear” that a status quo “cannot be altered or established by the unilateral “self help” conduct of one parent”. In the Gray case, Justice Charney rejected the Father’s argument that a status quo had been established in his favour as a result of him unilaterally withholding the child from her mother.
If you have recently separated, any parenting arrangement that you enter into in the short term may remain in effect longer than anticipated, or even become a long-term schedule. A party may unknowingly prejudice their case by failing to take steps when faced with a parenting schedule that they are unhappy with or they do not feel meets their children’s best interests. It is important to obtain timely legal advice about your potential claims relating to any parenting issues that may arise upon separation.
Our lawyers are experienced dealing with both high conflict parenting disputes and amicable parenting agreements. We are pleased to provide advice to clients at all stages of separation so that our clients can make informed decisions in their best interests, and in the interests of their children, as their matters progresses. If you would like to schedule a consultation with one of our lawyers, please contact our office at (905) 372-1994.