“Caution should be exercised when making a temporary Order dealing with custody where the untested evidence about children’s best interests is conflicting. In McPhail v. McPhail, 2018 ONSC 735, 2018 CarswellOnt 1013, at para. 21, Lacelle J. observed,
The case law has also sounded a note of caution about making determinations about custody and access on an interim basis when the evidentiary record consists of competing, contradictory and untested affidavit evidence. There is a general recognition that in these circumstances trial judges will be in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what regime is in a child’s best interests: see for instance Davies v. Davies, 2017 ONSC 3667 (Ont. S.C.J.) at para. 14; Rifai v. Green at para. 16; Cosentino v. Cosentino, 2016 ONSC 5621 (Ont. S.C.J.) at para. 15; Bruneau v. Wark, [2014] O.J. No. 4578 (Ont. S.C.J.); and Collins v. Collins, [2011] O.J. No. 2085 (Ont. S.C.J.).
The caution is warranted because a temporary Order may not infrequently form the basis of a final Order, especially after a significant passage of time: Rifai v. Green, 2014 ONSC 1377 (Ont. S.C.), at para. 17. In Batsinda v. Batsinda, 2013 ONSC 7869 (CanLII) at para. 22, Chappel J. commented that:
…[o]ften, the courts will conclude that a temporary custody order dealing with all of the incidents of custody is not necessary at the interim stage, and will simply address primary residence, timesharing and some of the most critical incidents of custody such as school issues and routine and emergency medical care.”