“As I have previously emphasized in Kerr v. Kerr, the Court of Appeal statement in Papp v. Papp that clear and compelling evidence is typically required to disrupt the status quo on a motion for temporary relief did not establish a presumption that the status quo should continue absent clear and compelling circumstances that make a change absolutely necessary. On motions dealing with temporary custody, residence and access there is no presumptive rule in favour of the status quo that must be rebutted by the party seeking to change the existing arrangements. As the Court of Appeal emphasized in Papp v. Papp, the applicable test remains the best interests of the child. In applying that test, there is an obligation on the part of the court to carefully scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements, and to ensure that the evidence is sufficiently compelling before acting upon that evidence to vary the existing arrangements. The Ontario Divisional Court highlighted the importance of avoiding presumptive rules on motions relating to temporary custody and access in the case of Holt v. Anderson, 2005 CarswellOnt 5158, (Div. Ct.). It emphasized that the overriding consideration in such cases is the best interests of the child, and that the maintenance of the status quo arrangements as of the time of the hearing should not be elevated into an immutable principle.
The Supreme Court of Canada has also highlighted the importance of avoiding rigid rules and presumptions in carrying out the best interests analysis in custody and access cases.
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. (Irwin v. Irwin(1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. 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. (see, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). 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.”