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  • Writer's pictureJared Davies, Lawyer

The status quo parenting arrangement

The “status quo” parenting arrangement is the current or existing parenting arrangement for the children. A status quo can arise even before a temporary court order or a formal separation agreement. For example, if a separating couple decides that one parent will be the primary caregiver and the other will see the children on weekends, this still creates a status quo. Changing any parenting arrangement on a temporary basis can be difficult. And the longer the status quo, the more difficult it is to change on a temporary basis.

In Miranda v Miranda, 2013 ONSC 4704, (cited as recently as Purvis-Daivd v Roussy, 2022 ONSC 793), the court summarized:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests….

In other words, the standard to change an interim arrangement is very high. The court says that there is a presumption of the status quo. The parent wishing to change it bears the onus to establish why it must change. And usually, the court will not change it absent a compelling reason.

Schleen v Herbert, 2021 ONSC 7397 explains that part of the reason for the strong onus is that all the evidence cannot be adduced until trial, where parties can be examined more thoroughly. On motion, a judge will typically only have the affidavits of the parties. The case explains:

35 Parenting determinations at temporary motions are challenging as decisions are being made without the benefit of a full evidentiary record. Temporary orders are intended to provide a "band-aid" solution pending a full hearing. The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the child requires a change.

At the end of the day, the court is focused on the best interests of the child. Most judges find that it is simply not in the best interests of the child to have their schedules or arrangements changed before a final decision is made at trial. If this were not the case, then children would be liable to be moved back and forth on multiple different interim orders and then again at trial on a final basis. However, each case depends on its own unique facts. Western v Reed, 2022 ONSC 900 explains:

22 Generally, on a temporary basis the court should not adjust an established parenting time arrangement, even if there are minor difficulties with it, unless there is a compelling reason to do so. That is, it is not in the child's best interest for an established parenting time arrangement to be changed on a temporary basis, only to be changed again at trial after a court has thoroughly reviewed all of the evidence.

However, one thing to keep in mind is that courts do not like it when a parent makes a unilateral change to a parenting schedule resulting in a new status quo. In other words, a court does not want to “reward” a parent who sets the status quo without the acquiescence of the other parent. Graham v Wilson, [2009] W.D.F.L. 2338 clarifies:

16 Although the courts will tend to maintain the status quo on an interim motion, if it is shown to be working for the children's benefit, a status quo that results from the unilateral action of one of the parties does not warrant the same consideration….

Finally, the best interests of the child test in the Children’s Law Reform Act or the Divorce Act states that one of the factors the courts can look at for parenting time is the history of care of the child. In other words, the status quo is going to be a factor in the final parenting arrangement.

Obvious takeaways? The status quo parenting arrangement is not usually disturbed except in compelling circumstances. Courts are loathe to change a schedule on a temporary basis only to have it changed again on a final basis at trial. Normally, this would not be in the best interests of the child. However, each case will be decided on its own facts.

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