“At paragraph 9 of Davis v. Nusca, 2003 CanLII 2301 (ON SCDC), Justice Benotto, writing for the Divisional Court in an appeal from a motion wherein a mother had been granted leave to move to Sweden with two small children before trial, noted that: “the status quo relates not so much to a location as to the continuity of care.”
At paragraph 26 of Grant v. Turgeon, 2000 CanLII 22565 (ON SC) Justice MacKinnon reasoned that a status quo required consistent residency and was difficult to discern where there was “factual controversy as to when the children were with each parent.”
Here, there is no such factual controversy: Deverick has been in Mother’s primary care and has spent alternate weekends and a mid-week evening visit with Father continuously for more than three years. From Deverick’s perspective – which is the court’s focus in assessing his best interests – he lives primarily with his Mother in Kitchener and visits his Father in Ingersoll. I find that this is the status quo.
What then, is the test for changing the status quo on motion? At paragraph 26 of S.H. v. D.K., 2022 ONSC 1203, Justice Dambrot writing for the Divisional Court put it this way (internal citations omitted):
[26] 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. 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, 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, “the basic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.”
Thus, the court is to exercise caution, and to generally maintain the status quo unless compelling reasons necessitate a change to meet a child’s best interests. The reason is simple: children ought not to be bandied about between households while the litigation unfolds. Family circumstances fluctuate, and the wheels of justice turn slowly: from a child-focused public policy perspective, ever-changing parenting plans are not in the best interests of children whose lives have already been completely disrupted by their parents’ separation.
I do part ways with Justice MacKinnon in concluding that the underlying source of the status quo is irrelevant. If it arises de jure, meaning from an existing Order of the Court (especially a Final Order), then a change in the parenting structure should be made in only the clearest of cases. Greater flexibility may be exercised if the status quo arises de facto, meaning on the basis of lived reality, having regard to the simple fact of delays inherent in post-separation negotiation and litigation. In my view, considerations applicable to the assessment of changing a status quo de facto, include:
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- whether the parent seeking the change objected to the arrangement at its outset;
- what steps were taken by the parent seeking the change, including attempts at negotiation or mediation;
- whether the parent seeking the change commenced litigation quickly following the hardening of the parties’ positions;
- how closely the parenting proposal made by the parent objecting to the status quoresembles the children’s lived experience pre-separation or, if applicable, immediately post-separation;
- how much time has elapsed;
- how each parenting proposal impacts upon the children’s day-to-day lived experience; and
- the children’s views and preferences, where they can be reasonably ascertained.
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