BACKGROUND

The Applicant mother and the Respondent father have one child, (“The Child”). Both parties brought a motion before the court to address parenting time and child support.

The Applicant and the Respondent had signed a Separation Agreement in March 2019, which states:

1. There is a shared parenting schedule;
2. The Child’s residence with both parents is to remain the Region of Waterloo except on agreement or by a court order; and
3. Child support is at a reduced amount (to account for shared parenting) at the rate of $575 monthly.

The mother argues that the father breached the terms of the Separation Agreement when he (1) reduced his parenting time to remove weekday overnights, including alternate Sunday nights; and (2) moved roughly 40 minutes outside of the Region of Waterloo.

The father claims that the COVID-19 situation and negotiations between counsels took up a lot of time from 2020 and 2022, and that the Applicant mother obstructed his time with The Child on weekday evenings once he moved.

Status Quo

The Applicant mother argues that the existing situation, where The Child has not been with his father weeknights since mid-2020 created a status quo that should not change on motion. The Respondent father disagrees.

Parenting Issues

Both parties agree that The Child should be in his father’s care on alternate weekends and once per week, but they disagree about the specifics of that time. The Respondent father believes that alternate weekends is from Friday at 8:30 AM to Monday at 8:30 AM. The Applicant mother states that alternate weekends run from Friday at 3:30 PM to Sunday at 7:30 PM.

For the mid-week parenting time, the mother seeks an evening visit on Wednesdays from 3:30 PM to 7:30 PM, whereas the father seeks Tuesdays from 8:30 AM to Wednesdays at 7:30 PM.

Child Support

The mother seeks an increase in child support retroactive to January 1, 2023 on the basis of the father’s income, and because The Child has not spent more than 40% of his time with his father pursuant to a shared parenting schedule.

ISSUES

1. Has a status quo been established?
2. When should a status quo be changed on a temporary basis?

ANALYSIS

1. Has a status quo been established?

The Court states that a status quo requires consistent residency. In this case, it is indisputable that The Child has been primarily in his mother’s care and has spent alternate weekends and a mid-week evening visit with his father for three years.

Thus, the Ontario Superior Court determined that this is the status quo.

2. When should a status quo be changed on a temporary basis?

The Court stated that courts must exercise caution before changing an existing arrangement that children have become accustomed to. Generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons that show the necessity of a change that meets the child’s best interests.

The Court also found that when there is an existing Court Order that addresses parenting time, a change in the status quo should only be granted when there are clear and compelling reasons to do so. However, flexibility may be exercised when the status quo occurs de facto, meaning a change in the parenting arrangement naturally occurs on a day-to-day basis.

Factors that contribute to the assessment of changing a status quo de facto include:

1. Whether the parent seeking the change objected to the arrangement at its outset;
2. What steps were taken by the parent seeking the change, including attempts at mediation or negotiation;
3. Whether the parent seeking the change commenced litigation quickly following the hardening of the parties’ positions;
4. 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;
5. How much time has elapsed;
6. How each parenting proposal impacts upon the children’s day-to-day lived experience; and
7. The children’s views and preferences, where they can be reasonably ascertained.

In this case, the change to The Child’s time with his father happened at the father’s request. Further, the father did not take any litigation action to have this parenting time reinstated until he had to respond to the mother’s Motion to Change. The Court also determined that although the Respondent father’s proposal follows the Separation Agreement, four years have passed since The Child was with his father more than 40% of the time.

CONCLUSION

The Court ruled that a status quo exists, and that a change in the status quo on a temporary basis is not in The Child’s best interests.