“There is no dispute that the court must make this determination based on the best interests of the child, taking into account the various factors set out in s. 24 of the Children’s Law Reform Act, R.S.O. 1990 c. C12, (CLRA).
Often in these cases, “best interest” is determined by maintaining the status quo: Ursic v. Ursic, 2006 CanLII 18349 (ONCA), at para. 32; De Matos v. De Matos, 2015 ONSC 4554, at para. 18; Pancel v. Henri, 2012 ONSC 546, at paras. 25 and 26; McPhail v. McPhail, 2018 ONSC 735, at para. 15.
The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings if there are, as in this case, conflicting affidavits: R.C. v. L.C., 2021 ONSC 1963, at para. 62.
The courts have also determined that a party cannot unilaterally alter the status quo by denying the other party parenting time without a court order or formal agreement. The status quo does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. 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. Thus, the status quo in this case must be determined by examining the status quo before separation: McPhail, at para. 17 and cases cited therein; Rifai v. Green, 2014 ONSC 1377, at para. 25.”