Month: April 2026

“The court must be mindful that an interim order can often have long-term implications for the child and the outcome of the litigation. F.B. v. C.H. 2021 ONCJ 275 (OCJ); Coe v. Tope, 2014 ONSC 4002 (SCJ).  As a result, the existence of a status quo – and its manner of creation – are often the subject of significant controversy at the motion stage.

a.    The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation; by any consensual arrangement made after separation; or by court order. Brady v. Fitzpatrick 2022 ONSC 2380 (SCJ); Gray v. Canonico, 2020 ONSC 5885 (SCJ); Falarz v. Gullusci 2023 ONSC 2644 (SCJ)

b.    If a motion is brought immediately after separation, the court will need to determine parenting roles and the child’s routine while the parties were together, with emphasis on more recent patterns.  If a time-sharing arrangement has emerged on a consensual basis since the date of separation – and if it is meeting the child’s needs – the court will be reluctant to change an arrangement which the child has become used to.  But if only a short amount of time has elapsed between the creation of a new status quo and the hearing of the motion, the court will be more inclined to presume that restoration of a previous successful status quo is appropriate. Kennedy v. Hull2005 ONCJ 275 (OCJ); M.H.S. v. M.R. 2021 ONCJ 665 (OCJ).

Because of the obvious importance of the status quo as a best interests consideration, courts must be mindful of – and actively discourage – efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ); Coe v. Tope, 2014 ONSC 4002 (SCJ).

a.    The status quo does not refer to a situation unreasonably created by one party after separation to obtain a tactical advantage in the litigation.  Cabral v. Parker2021 ONSC 4574 (SCJ); Theriault v. Ford, 2022 ONSC 3619 (SCJ)  Neither parent has the right to suddenly impose major changes in a child’s life, or to unilaterally interfere with or impede the other parent’s contact or role in the child’s life. A parent cannot be permitted to gain a litigation advantage through manipulation of events, or by creating a new arrangement which they may later characterize as the “status quo.” Rifai v. Green 2014 ONSC 1377 (SCJ); Ivory v. Ivory 2021 ONSC 5475 (SCJ); J.F.R. v. K.L.L. 2022 ONSC 5067 (SCJ); Wang v. Tang, 2023 ONSC 3609 (SCJ).

b.    Parents cannot resort to self-help remedies; ignore obligations under agreements or orders; present a fait accomplito the court on an interim basis; and expect the court to approve. That is a recipe for chaos, and disaster, and is unfair to children caught in the middle. Sain v Shahbazi, 2023 ONSC 5187 (SCJ)

c.    Self-help is to be discouraged, and certainly not rewarded.  A parent who engages in self-help tactics for strategic purposes — despite the best interests of the child — will generally raise serious questions about their own parenting skills and judgment.  Southorn v. Ree, 2019 ONSC 1298 (SCJ); McPhail v. McPhail, 2018 ONSC 735 (SCJ); C.C. v. I.C., 2021 ONSC 6471 (SCJ); Rifai v. Green,2014 ONSC 1377 (SCJ); M.H.S. v. M.R. 2021 ONCJ 665 (OCJ).

d.    Neither parent has the right to create a unilateral parenting status quo, even if there is an alleged safety issue. Gray v. Canonico, 2020 ONSC 5885 (SCJ); Ivory v. Ivory 2021 ONSC 5475 (SCJ); Ibitoye v. Ibitoye 2023 ONSC 2008 (SCJ)

e.    It is inappropriate for a parent to make secret plans which will have significant impact on children and parenting arrangements, and then announce those plans after decisions have been implemented.  Canning v. Davis-Hall, 2019 ONCJ 971 (OCJ); Doan v. Tran, 2022 ONCJ 419 (OCJ)

f.      Parents take unilateral action at their own peril.  The court will not sanction self-help in circumstances where the best interests of children may potentially be jeopardized.  Corrective action by the court may be swift and firm – with long-term consequences quite the opposite of what the offending parent hoped to achieve.  Fallis v. Decker, 2013 ONSC 5206(SCJ).

Churchill v. Elliot and Ward, 2024 ONSC 1907 (CanLII) at 37-38

“In Rifai v. Green, 2014 ONSC 1377, Pazaratz J. decried self-help parenting measures. He pointed out that one parent does not start out with higher status than the other:

25  The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child’s life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child’s life. Neither parent has the right to unilaterally interfere with or impede the other parent’s contact or role in the child’s life.

He described the parent who engages in self-help tactics that belie a child’s best interests as raising questions about the new status quo and the moving parents’ own parenting skills, writing:

22  A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ).

Fallis v. Decker, 2013 ONSC 5206 is another case in which Pazaratz J. considered the tactic of mobility self-help. In that case, the mother moved and then came to court arguing a new status quo. Pazaratz J. would have none of that argument. He described her tactics as “brinksmanship”. He asserted at para. 27 that “[p]arents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.” He added that “[p]articularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo.”

In Arbitman v. Lee, 2021 ONSC 315, Monahan J. took a similar approach to the problem of self-help, even when confronted with that behaviour from a primary caregiver. He wrote of the need to discourage that kind of behaviour as follows:

39  First, the current arrangements whereby the Applicant’s time with the children has been severely restricted is purely de facto rather than de jure, resulting from unilateral actions taken by the Respondent rather than as a result of a court order. Self-help measures are to be discouraged, and resort to the courts for permission is indicated where a parent’s right of access to children is to be restricted. If the current restrictions on the Applicant’s access to the children were to serve as a benchmark or starting point for determining the parenting schedule going forward, the effect would be to reward rather than discourage the Respondent’s resort to self-help.

Here, the mother attempted to unilaterally create her own new status quo, brazenly asserting that her unilateral right to remove the child was “non-negotiable”. She may have done better by making it negotiable.”

            Phillips v. Phillips, 2021 ONSC 2480 (CanLII) at 61-65