Case update: Status quo and maximum contact

woman's hands on thick book

In the case of Theriault v Ford 2022 ONSC 3619, the court considered what “status quo” and “maximum contact” mean within the context of the amendments to the Divorce Act and Children’s Law Reform Act.

This case involves parents of two children who were married to each other for 8 years before separating. The father was charged with assault of the mother and released on conditions not to communicate with her. Shortly after the father was charged, he enrolled in a one-month rehabilitation program related to his substance use leaving the children alone with the mother.

Following the father’s treatment program, the parents instituted an ad hoc parenting regime for a few months in which the father had the children every second Friday evening to Sunday evening as well as Wednesday evening visits. They also agreed that the father would have extra time during the holidays.

The mother brought the motion after the father unilaterally extended his time with the children by keeping  them on Sundays until Monday morning and on Wednesdays until Thursday morning.

At the hearing of the motion, the judge considered three issues:

  1. What was the status quo when the family was together?
  2. How does the “maximum contact” principle apply in the circumstances?
  3. What order for parenting will best serve the children’s interests on a temporary, without prejudice basis pending a full hearing on the merits?

In arriving at his decision on status quo, Justice Abrams indicates:

  • At an interim “custody” stage, the court will consider whether the parents recklessly created a new status quo [para 15]
  • In a fresh separation, the court will look at what the status quo parenting arrangements were when the family was still together [para 16]
  • The court will not consider “short-lived” status quo created to gain a tactical advantage [para 16]

On parenting time, Justice Abrams considers:

  • “In allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child” [para 19]
  • Any approach to parenting time should be child focused [para 20]

Because the parents were only separated for 7 months  the Court was required to consider the status quo when the family was together. Both parents claimed to be primarily responsible for parenting the children; however, the judge felt that the affidavit evidence provided by both parents were “untested”, making it difficult for the judge to determine which evidence to prefer

In considering the best interests of the child test in section 24 of the Children’s Law Reform Act, Justice Abrams was of the view that while both parents struggled with substance use during their marriage, “there is nothing in the record to suggest that both parties are anything other than loving, capable and caring parents” [para. 27].

Justice Abrams awarded maximum parenting time (or equal parenting time) for each parent on a temporary basis.