In the family law context, the status quo is a concept that courts use to help make decisions relating to parenting and decision-making responsibility. Courts can tend to maintain status quo arrangements relating to children on a temporary basis unless there are reasons to make changes. Consistent and stable arrangements will usually be in a child’s best interests, so the status quo arrangements take on significant importance. Importantly, the status quo cannot be unilaterally changed by one party’s actions, and courts will guard against a party’s efforts to impose new circumstances.
On temporary motions, courts are cautious about changing the status quo arrangements to parenting or decision-making and risking disruption. In Batsinda v. Batsinda, Justice Chappell explained that changes should not be made to existing circumstances “pending trial unless there are compelling circumstances which render a change absolutely necessary in order to satisfy the child’s best interests”. However, courts will also assess how well the existing arrangements are working. Nevertheless, in L.M.B. v. F.J.D., Justice Cheung explained that there is no strict presumption in favour of the status quo. In each case, the focus is on the arrangements that are in the best interests of the child.
In assessing this, the courts are required to “scrutinize and weigh the quality, magnitude, and strength of the evidence adduced in support of a change to the status quo arrangements”. Generally, however, the evidence needs to be compelling before varying the existing arrangements. In Batsinda, Justice Chappell set out a general rule that disturbing the status quo at an interim stage requires more compelling evidence than would be needed to adjust the status quo after the trial.
In L.M.B., the court faced a motion regarding temporary parenting orders for the parties’ children. The parties had an informal arrangement where the children resided with the mother during the weekdays and spent certain weekends with the father. In March 2020, following a visit with the father, he did not return the children to the mother. The judge first determined what the status quo was in the period of time leading up to the March weekend. Justice Cheung pointedly noted that the status quo was not the set of arrangements that were in place after that date, which was the children living exclusively with the father, as that situation was unilaterally brought about by the father. The evidence was also clear that from the time of separation until the March weekend, the children resided with the mother from Monday to Friday and spent certain weekends with the father.
The father now wanted to alter the primary residence of the children and restrict their contact with the mother. The judge found that this change to the status quo would be a serious restriction on the relationship between the mother and the children. The father had concerns about some of the mother’s behaviour and her judgement and its impact on the children. However, a children’s aid society conducted an assessment of the mother’s parenting, and the evidence was not sufficient to make the significant changes the father requested. The court was concerned about some of the mother’s choices, and some of the concerns were relevant to a long-term plan for the children. However, as the children’s physical and emotional wellbeing was being met, the evidence was not compelling enough to adjust the status quo before trial.
As the status quo can take on significant weight in cases, a parent may try to unilaterally change the existing arrangements against objections from the other parent, although courts do not look favourably on efforts to impose a new “status quo”.
In Batsinda, Justice Chappell commented on what is meant by the status quo. It does not refer to a “situation unreasonably created by one party after separation to create a tactical advantage in the litigation”. The point was followed in L.M.B., where the judge explained that when one party unilaterally or unreasonably alters the arrangements to the detriment of the other to gain a tactical advantage, the new circumstances cannot be considered the status quo. Instead, what is relevant on a temporary motion is for the court to consider the arrangements that existed between the parties prior to the separation. As the judge put it, the “legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party”. This discourages parties from attempting to unilaterally create a new status quo.
In Izyuk v. Bilousov, the court had to determine whether a two year “status quo”, which was unilaterally created by manipulation, should prevail. For the first seven months after the parties separated, the respondent father had regular parenting time with the child. However, the applicant mother decided to restrict the father’s contact. The father argued that she unilaterally terminated a successful co-parenting arrangement to marginalize his role in the child’s life. He suggested this was detrimental to the child, and that the mother exaggerated the scale of their conflict for strategic reasons.
The mother argued that the child had now been living with her in a stable environment for a significant time. The judge acknowledged that was the case, and that regardless of how it came about, the child was now used to living with his mother, and any significant disruption had to be justified and “implemented in a sensitive manner”. Ultimately, the mother urged the court not to disrupt the routine and relationships the child was now used to.
Recognizing that assessing the status quo arrangements is a complex exercise, Justice Pazaratz pointed out that prior to the mother’s actions there was also an equally beneficial status quo. It was her actions in unilaterally terminating the father’s parenting time that brought that arrangement to an end, even though the child was used to seeing his father on a daily basis.
The mother suggested that her actions were justified, however, the judge disagreed, and found that she lied to gain a beneficial strategic position during the trial. This represented a “fundamental deficit in parental judgment and trustworthiness” and needed to be dealt with decisively “to protect the child from further interference and deprivation”. Justice Pazaratz concluded that whatever status quo the mother created should not continue. She unilaterally assumed all decision-making and used her authority to exclude the father, and it was not in the best interests of the child for that to continue.
It is in a child’s best interest to have stability, so courts may be reluctant to alter existing parenting arrangements on an interim or temporary basis. However, the status quo can be changed if there are compelling reasons to do so. Ultimately, courts will give priority to the well-being of a child and will intervene to ensure the child’s best interests are being met.
When a separation or divorce involves issues relating to children, parties may dispute what is in their child’s best interests when it comes to decision-making responsibility and parenting time matters. The trusted family lawyers at NULaw provide every client with clear, practical advice to help them make informed decisions about their parental rights. To arrange a confidential consultation with one of our lawyers to discuss your parenting arrangement questions, contact us by phone at 416-481-5604 or online.