“Generally, any disposition concerning the parenting of a child must be in accordance with the child’s best interests as defined in s. 16 of the Divorce Act. The provisions in s. 16 which are raised in this motion is the relative ability of the parties to meet the child’s needs, especially for stability (s. 16(1)(a)), the views and preferences of the children (s. 16(1)(e)) and the issue of family violence as raised by the Applicant (s. 16(1)(j)).
However, in the case of the request by the Applicant to change an existing status quo and order in an interim motion, more is necessary. In addition, the Applicant must meet the high threshold necessary to make an interim change to an existing status quo. In the present case, the Applicant relies upon the s. 112 report completed by Ms. Vaillencourt for the Office of the Children’s Lawyer.
The law concerning changes in a status quo can be summed up as follows:
a. The courts have traditionally taken a dim view of any change in a parenting status quo on a temporary motion. That is because such a motion is brought on unreliable and conflicting affidavit evidence where credibility of parties cannot be determined. As well, if the status quo does change on an interim motion, there is, of course the risk that the change will be undone at trial, resulting in the children moving twice rather than once, creating instability.
b. Because of this, the court requires compelling reasons to depart from the status quo prior to the hearing of the motion. Alternatively, the test has been set out as requiring “exceptional circumstances where immediate action is mandated”: see Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 (S.C.J.) at para. 17. Other cases have suggested that there must be some danger to the child remaining in the present status quo: see Miranda v. Miranda, 2013 ONSC 4704 and Elliott v. Filipova, 2019 ONSC 4506.
c. In addition, if a party is seeking to change the terms of an existing court order, temporary or otherwise, there must be a change in circumstances prior to making the order: see the Divorce Act, s. 17(5)and Lonsdale v. Smart, 2018 ONSC 3991 at para. 9.
d. If a party wishes to rely upon the recommendations in an assessment report or s. 112 investigation in changing the status quo, the court must exercise caution in doing so. The traditional viewpoint is that an assessment report or an investigation as in the present case is only one piece of evidence to be used at trial and should not be acted upon until the court can assess the weight to give to the report through cross-examination and trial: see Genovesi v. Genovesi, 1992 CanLII 8562 (ON SC), [1992] O.J. No. 1261 (Gen. Div.), Grant v. Turgeon, supraand JLM v. PDAB, 2012 ONSC 4696 at para. 15-16.
e. There is authority, however, that the evidencecontained in an assessment report (as opposed to the expert’s recommendations) may be relied upon if it is sufficiently compelling to warrant a change in a status quo or previous order: see Bos v. Bos, [2012] ONSC 3425 and Krasaev v. Krasaev, 2016 ONSC 5951. In fact, in Krasaev, Douglas J. distinguished between the evidence in the report and the recommendations when he says [at para. 38]: “I note that the caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in the report.”
In reviewing the weight to be given to that evidence, Bos v. Bos, supra offers some guidance. Mitrow J. suggested that Genovesi should not prevent the court from reviewing evidence contained in an investigative report, stating [at para. 23] that
…although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo.”