• by Samantha Rich
Originally published in the OFLM 2024-04 edition
Overview
Justice Breithaupt Smith’s decision of Stanway v. Stanway (2024 ONSC 477) affirms the long-standing rule that the status quo of a parenting schedule should not be lightly departed from, especially on an interim basis. A party has a high threshold to meet to successfully convince a judge to depart from the status quo. The court will only depart from an existing situation if it is proven to be clearly in the child’s best interests. The principles of maintaining the status quo and continuity of care are important factors in the best interests analysis, but are not the sole determinative factors. A party wishing to change the status quo on motion will need to ensure that they place compelling evidence before the court to meet the high threshold required to disrupt it.
Background of Stanway v. Stanway
The parents of an elementary school-aged child each brought a motion to address parenting time, decision-making responsibility, and child support. The parties were governed by a Separation Agreement, dated March 8, 2019. The terms of the Separation Agreement included joint decision-making, with the mother having the final authority, and shared parenting in the Region of Waterloo.
The mother argued that the existing situation was that the child had not been in the father’s care on weekday overnights since mid-2020 at the time of the hearing. She argued that this created a status quo that should not be lightly interrupted on motion. The father disagreed, stating that the combination of the COVID-19 situation, negotiations between counsel, and court delays ought not to be a sufficient foundation upon which to base a status quo. (at para. 6)
Status Quo Analysis
Justice Breithaupt Smith held that we must first analyse: (1) whether a status quo has been established; and (2) if established, the legal test for changing it on an interim basis (at para. 11).
(1) Has a Status Quo Been Established?
The first step of the analysis is whether a status quo has been established. Once you meet this threshold, you can move on to the second part of the test. In Stanway v. Stanway, Justice Breithaupt Smith found that a status quo had been established.
She cited Justice Benotto’s decision of Davis v. Nusca (2003 CanLII 2301 (ON SCDC)), who stated that "… it is clear as well that the status quo relates not so much to a location as to the continuity of care..." (at para. 9). The court affirmed the preference of the child remaining in the care of the parent who had been the primary carer for the child at the time of the hearing, as this is the child-focused approach.
The court also cited Grant v. Turgeon (2000 CanLII 22565 (ON SC)) where 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." (at para. 13)
Breithaupt Smith J. found that in the matter before her, there was no factual controversy. She stated that, “… [the child] has been in [the] Mother's primary care and has spent alternate weekends and a mid-week evening visit with [the] Father continuously for more than three years. From [the child’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.” (at para. 14)
The court affirmed the principles of maintaining the status quo and continuity of care pending trial.
(2) When Should a Status Quo be Changed on a Temporary Basis?
The second step of the analysis is to determine the legal test for changing the status quo on an interim basis.
The court cited Justice Dambrot’s decision of S.H. v. D.K. (2022 ONSC 1203) in setting out the test for changing the status quo on a motion. It is clear that the court has established a high threshold for departing from the status quo, especially on an interim basis.
In S.H. v. D.K., the divisional court at paragraph 26 of its decision stated that, “Parenting arrangements may be informal, they may arise from a separation agreement, or they may be fixed by an interim or final judicial order.” It cited Justice Pazaratz’s decision at paragraph 52 in F.K. v. A.K. (2020 ONSC 3726), affirming that when assessing whether a parenting arrangement should be varied, “… courts must exercise caution before changing an existing arrangement which children have become used to.” This caution is warranted given the disruption that would ensue if the status quo were to be departed from pending a final decision where the parenting schedule may be changed once again.
S.H. v. D.K. also cited the decision of Grant v. Turgeon, where Justice MacKinnon stated at paragraph 15 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. This is so, whether the existing arrangement is de facto or de jure." Thus, parents wishing to change the status quo on motion will need to ensure that they place compelling evidence before the court to meet the high threshold required to change the status quo. The court also cited Justice Benotto’s decision of Davis v. Nusca, where she stated at paragraph 8 that "… there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases…"
In S.H. v. D.K., the court further cited Justice Pazaratz’s decision in F.K. v. A.K. in affirming the stringent analysis required when assessing whether a final order should be temporarily varied at paragraph 27:
… the need to exercise caution is heightened where the existing parental arrangement has been determined by a court order, and that the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a final order in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling . The onus is on the party seeking a temporary variation to establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child's physical and/or emotional well-being, and that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. (emphasis added)
Thus, a parent seeking to change the status quo would have to prove that at a minimum the current parenting schedule is ‘jeopardizing the child's physical and/or emotional well-being’.
S.H. v. D.K. also held at paragraph 28 that, “The imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle, since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made... There is a long line of cases prior to the decision in F.K. v. A.K. that insist on a stringent test...”
Justice Breithaupt Smith summarized the divisional court in S.H. v. D.K. and warned courts to exercise caution:
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. (at para. 16)
Factors to be considered
The court will assess the matter as a whole to determine whether the status quo ought to be maintained or departed from in the child’s best interests. The courts have determined a number of factors which should be assessed when making such a determination.
Justice Breithaupt Smith stated that there is greater flexibility where the status quo arises from the “lived reality”, i.e. the current parenting schedule, having regard to the delays occasioned by negotiation and litigation post-separation. She then went on to list the factors which should be considered when embarking on an assessment to change the status quo arising from the “lived reality” at paragraph 18:
- 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 quo resembles 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.
Justice Pazaratz in his decision of M.C. v. N.M. (2014 ONSC 2048) provided an additional list of factors which should be assessed in determining whether the status quo should be varied temporarily and the objectives which should be borne in mind when making a determination:
There is no presumption in favour of the status quo, but it is an important factor, perhaps more so in relation to temporary orders. Among the considerations in determining a final custody order:
a. The length of time the arrangement has existed, and,
b. The extent to which the existing arrangement is or has been beneficial to the child.
c. The impact of discontinuing the existing arrangement on the child's emotional or psychological health.
d. The impact of a proposed new arrangement on the child's emotional or psychological health.
…
Among the obvious objectives:
a. Don't disrupt or jeopardize routines, arrangements or relationships which are benefiting the child.
b. Maintain as much consistency and continuity in a child's life as possible, relating not only to family dynamics, but also community connections such as friends, neighbourhoods, schools, medical services, etc.
c. Children in custody disputes have often already experienced the emotional trauma of instability, conflict, and disruption. If their circumstances are now stable, they should not have to experience more changes without compelling reasons.
d. Children - especially young children -- need stability and consistency. They benefit from routine. Anecdotally they are often described as "resilient to change", but child care professionals warn that such complacency is usually unwarranted.
e. Courts are understandably reluctant to abandon an arrangement which is working to a child's benefit, in favour of a speculative arrangement.
f. Although it may sound like a gross oversimplification, in considering the status quo there is a very real sense of "don't tamper with success." (at paragraphs 331 - 332)
Conclusion
It is clear that courts place a lot of weight on maintaining the status quo and continuity of care. Therefore, in order to be successful with changing the status quo, counsel will need to present a strong case with clear evidence to warrant it.
The kinds of cases which would likely be successful would be where the status quo is clearly not in the child’s best interests.
Still, parents seeking to enforce the existing state of affairs need to come to court with clean hands. The status quo should not be artificially created for the purposes of a litigation strategy.
Also, the status quo alone is not determinative of whether a variation of the parenting time is in the child’s best interests. As pointed out by Justice Pazaratz, there is no presumption in favour of the status quo.
Nevertheless, in light of the consistent emphasis by judges to consider the status quo in their reasoning, it is a principle not to be taken lightly.