Case Comment: Parenting time and decision-making
This case, written by Justice Pazaratz, provides a good overview of status quo and without prejudice interim parenting orders.
The applicant mother and the respondent father had one child together, who was eight years old at the time of this motion. The other respondent, who did not participate in the motion, was the mother of one of the respondent father’s other two children; a 17-year-old daughter.
At the time of the motion, the eight-year-old lived with his father, as did his 17-year-old daughter. The eight-year-old spent three out of four weekends with his mother. Her 11-year-old son from a prior relationship lived with her.
Prior to March 2022, the eight-year-old had lived with his mother, and his father had parenting time. In early March 2022, the mother asked the father to care for the eight-year-old, as both she and her 11-year-old son were experiencing mental health issues to the extent that the police and CAS had been involved with the family on several occasions. When the mother felt her situation had stabilized a few days later, she asked the father to return their son, but he refused, expressing concern that the mental health issues were ongoing and serious.
Much litigation ensued, through which the mother’s parenting time steadily increased, but with limitations on the 11-year-old’s presence when the eight-year-old was with her.
The Office of the Children’s Lawyer was involved and prepared a report which recommended that the mother should have decision-making responsibility for the eight-year-old and that the child should have a shared parenting schedule between his two homes. The father disputed this report.
A trial was scheduled for June 10, 2024, but the mother brought a further motion in March to change the parenting arrangements. Justice Pazaratz’s decision includes a highly detailed list of each parent’s narrative as well as a thorough canvassing of the relevant provisions of the Children’s Law Reform Act, with a particular focus on what constitutes a status quo, noting:
- The term status quo, while frequently mentioned as being an important consideration in determining or continuing parenting arrangements, does not appear specifically in the CLRA
- It’s a long-standing legal principle that, unless there is evidence of a material change requiring an immediate change, the status quo is generally to be maintained until trial
- To change the status quo, there needs to be compelling evidence to show the child’s welfare would be in danger if the current arrangements were to be maintained
- The status quo is especially important at the time of an interim motion because the court often does not have enough evidence to make factual findings.
Justice Pazaratz wrote:
“Because of the obvious importance of the status quo as a best interest’s consideration, courts must be mindful of – and actively discourage – efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception.”
The mother had accused the father of doing just this, but Justice Pazaratz decided there was insufficient evidence to support this claim.
This case also looked at without prejudice orders. Simply put, a without prejudice order is an attempt to put an arrangement in place quickly and on a temporary basis without prejudging what the final decision should be.
Justice Pazaratz also had some thoughts about without prejudice interim parenting orders:
- A without prejudice order in the early stages of litigation can stabilize the situation without requiring a material change in circumstances
- However, a succession of without prejudice orders can perpetuate ever more motions, as each parent attempts to establish an advantageous status quo; noting that this was the case here, with the mother pursuing essentially the same motion repeatedly, gaining a bit of ground each time
He wrote:
“Allowing parents an unfettered right to keep trying to change parenting arrangements without requiring a material change in circumstances is inconsistent with children’s need for stability and predictability. At a certain point, the “without prejudice” characterization becomes counter-productive.”
Ultimately, Justice Pazaratz found that no immediate change to the parenting arrangements for the eight-year-old child was needed to reflect his best interests, noting:
- There were many disputed facts and allegations which it was “impossible” to sort out based only on affidavit evidence
- It was undisputed that the child had been primarily resident with the father for the previous two years
- There had been serious problems in the mother’s household when the eight-year-old was living with her
- The trial in this matter was only three months away and would create an opportunity for “a much more detailed and comprehensive analysis of all the evidence”
“You can call the interim arrangement whatever you want. But after a child’s placement has continued uneventfully for months – or in this case years – the “material change in circumstances” test becomes indistinguishable from the “why should we disrupt the status quo” test. . . . The court, very simply, cannot impose a dramatic change on this young child, based upon incomplete information. Very soon, all of these important issues will be thoroughly and properly considered. In the meantime, we must not make hasty decisions which might be subject to further change or even reversal at trial.”
The mother’s motion was dismissed and, in a separate proceeding, costs in the amount of $14,000 were awarded to the father.
