“Parenting arrangements may be informal, they may arise from a separation agreement, or they may be fixed by an interim or final judicial order. From time to time, courts are asked to vary parenting arrangements in each of these circumstances on an interim or temporary basis. As stated by Pazaratz J. in F.K. v. A. K., 2020 ONSC 3726, 43 R.F.L. (8th) 411, at para. 52, and accepted by the parties before the motion judge here, courts must exercise caution before changing an existing arrangement that children have become used to, particularly where the change is sought on an interim motion. There is ample authority for this requirement. To refer to but one example, in Grant v. Turgeon (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.), at para. 15, MacKinnon J. stated that “generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. That is so whether the existing arrangement is de facto or de jure.” As was stated by Benotto J., as she then was, in Davis v. Nusca, 2003 CanLII 2301 (ON SCDC), [2003] O.J. No. 3692 (Div. Ct.), at para. 8, “the basic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.”
Pazaratz J. went on to say at para. 52 of F.K. v. A.K. that the need to exercise caution is heightened where the existing parental arrangement has been determined by a court order, and that the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a final order in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling. The onus is on the party seeking a temporary variation to establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.
The imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle, since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made: Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) at p. 414. There is a long line of cases prior to the decision in F.K. v. A.K. that insist on a stringent test. I will mention only a few.
In Crawford v. Dixon (2001), 2001 CanLII 28121 (ON SC), 14 R.F.L. (5th) 267 (Ont. S.C.), at para. 14, Granger J. cited with approval James G. McLeod’s commentary on Dancsecs v. Dancsecs (1994), 1994 CanLII 7434 (ON SC), 5 R.F.L. (4th) 64 (Ont. Gen. Div.), in which he stated:
On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay.
In Fredette v. Fredette, [2005] O.J. No. 4938 (S.C.), at para. 5, Del Frate J. adopted the same passage.
In Innocente v. Innocente, 2014 ONSC 7082, 54 R.F.L. (7th) 93, at para. 45, Gauthier J. stated that where a temporary or interim variation of a final order has been granted, whether under the Divorce Act or the Family Law Act, R.S.O. 1990, c. F.3, the courts have found the following exceptional circumstances: to prevent undue hardship, where the failure to make the interim order would be incongruous or absurd, or where there is pressing and immediate urgency.
In Berta v. Berta, 2019 ONSC 505, 23 R.F.L. (8th) 201, after reviewing a number of authorities with regard to the test for an interim variation of a final support order, Kurz J. found that the test has included a requirement that the moving party establish a clear case of hardship and urgency. And in Ivens, Kurz J. found that those same two prerequisites also apply to an interim variation of a parenting order.
In addition, the more elaborate formulation of the test in F.K. has itself been cited with approval in many subsequent cases, including A.T.W. v. K.A.W., 2020 ONSC 4894, 45 R.F.L. (8th) 391, at para. 42, Tone v. Tone, 2021 ONSC 3747, 57 R.F.L. (8th) 376, at paras. 22-23, A.T. v. E.R.P., 2021 ONSC 4693, at para. 33, S.E.S. v. T.J.B., 2021 ONSC 2357, at paras. 62-63, Ramirez v. Estupinan, 2021 ONSC 5122, at para. 32, and Joachim v. Joachim, 2021 ONSC 7424, at para. 34.”
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