“Counsel for the mother argues that in assessing what is in the best interests of the child at an interim motion, one of the most relevant factors is maintaining the status quo pending trial. Temporary Orders are based on limited evidence without the court having the benefit of cross-examination and therefore, only intended to provide a reasonably acceptable solution to a difficult problem pending trial. Counsel for the mother relies on the decision of Grant v Turgeon, 2000 CanLII 22565 (ONSC) wherein Justice Mackinnon stated that generally the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity to meet the children’s best interests: para 15. Justice Mackinnon goes onto state that the rationale for this principle lies in fairness to the parties and concern for best interests of the child as it is generally not in the best interests to change residential arrangements if there is a possibility of another change pending trial: Grant v Turgeon at para 15.
While there may be circumstances in which maintaining the status is in the child’s best interests, for example if the facts are heavily contradicted and a trial date is scheduled, I do not read Justice Mackinnon’s decision to read that changes to parenting schedules cannot be made during interim motions. The predominant consideration for determining parenting time at any stage of the proceedings is the best interests of the child. The status quo is but one aspect of the best interest test which requires consideration of the history of the child’s care and the need for ongoing stability: Subsections 24(3)(a) and (h) Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (“CLRA”).
Furthermore, as explained by Justice Leach in Peet v Zolob, concerns about disturbing status quo have more force when that status quo is reasonably clear and one that has been defined by a previous agreement or a court order: Peet v Zolob, (2014) ONSC 5748 at para 17. In this case, the fact that the father has abided by the various parenting schedules imposed by the mother in March 2020, March 2021, and September 2021, does not constitute consent or acquiescence.”