“Just because the Court can vary a temporary order on a temporary basis prior to trial, or just because the Court can make an initial order for temporary decision-making that would disturb a status quo, does not necessarily mean that it should do so. Temporary orders are by their nature imperfect solutions, based on limited evidence, typically in affidavit form. They are meant to provide a “reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLii 66352 (Ont. S.C.J.) ¶ 17. The maintenance of the status quo is a heavy factor on a motion of this kind. That principle applies equally respecting motions to vary temporary orders on a temporary basis pending trial, and first time temporary orders that would result in a change to the status quo. The preferable approach is usually to get the matter on for trial.
At ¶ 49 of K.A.C. v. P.P., 2007 ONCJ 217, Murray J. wrote about that the reasons why courts place emphasis on the status quo at the interim stage of a cases, saying they “…flow from two concerns: a concern for fairness to the parties and a concern for the child’s best interests. Generally it is not in a child’s best interests to be subjected to a change in her residential arrangements if the possibility of yet another change is right around the corner because of an impending trial.”
Nevertheless, the Court is not powerless to act, where a child is in danger, or where there is some other compelling reasons to do so in a child’s best interests: see Grant v. Turgeon, 2000 CanLii 22565 (Ont. S.C.J.) ¶ 15; see also Kimpton v. Kimpton, 2002 CanLii 2793 (Ont. S.C.J.) ¶ 1, 2; see also K.A.C. v. P.P. And if the Court is inclined to consider a change on this more stringent test, a best interests’ analysis is still undertaken: see F.K. v. A.K., 2020 ONSC 3726. Section 16(1) of the Divorce Act makes a child’s best interests the only consideration. According to section 16(2), the child’s physical, emotional and psychological safety, security and well-being are the primary consideration when considering the statutory factors in section 16(3).
Finally, additional considerations when deciding to intervene or not, are about the calibre of the evidence before the Court, and how quickly the case is likely to go to trial: see K.A.C. v. P.P. ¶ 51.
With the above all being set out, I nevertheless note that in J.D. v. N.D., 2020 ONSC 7965, MacKinnon J. recently wrote about the applicability of the compelling circumstances test. At ¶ 17-18, MacKinnon J. set out some alternative factors that might apply rather than a compelling circumstances test. She wrote that these might include a consideration of the magnitude of the change sought, compared to the status quo, and the assessment of other evidence that might support (or not) the change sought. While some of the considerations at ¶ 17-18 are unique to motions requesting the implementation of assessment reports prior to trial, which issue is not directly before me in this case, MacKinnon J. nevertheless identified a possible shift in the jurisprudence respecting the proper approach at the interim stages of a parenting case more broadly.
In particular, MacKinnon J. called for a reconsideration of a more stringent analysis in appropriate cases. Writing about the facts of the case before her, she found at ¶ 12, 13, 14, 16, 17 and 22:
(1) Judicial notice may be taken that over the past twenty years the knowledge of the risks for children exposed to parental conflict and family violence has expanded. Evidence of actual harm, ongoing risks and long term consequences is also before the Court;
(2) On at least three occasions, the Children’s Aid Society of Ottawa verified protection concerns relating to the children’s exposure to adult conflict, as did an assessor (in that case before MacKinnon J.);
(3) Family court decisions are replete with examples of negative outcomes for children mired in high conflict parenting disputes, aggravated by the delay that it can take to get a case to trial;
(4) The legal landscape since Grant v. Turgeon has changed. While the traditional test (compelling circumstances) is still applied in some cases, other cases say the jurisprudence has evolved. For example, at ¶ 23 and 27 of Bos v. Bos, 2012 ONSC 3425, Mitrow J. said that the test was not so “rigid and inflexible” as to preclude a court from considering prior to trial, probative evidence, such as that in an assessment report; and
(5) Delaying a change in residential arrangements until trial is not always appropriate. Making a change sooner is sometimes the better option.
Concluding at ¶ 23, MacKinnon J. wrote:
In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.”