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EQUAL SHARED PARENTING - CHILD CUSTODY INTERIM MOTION

Equal Shared Parenting within child custody law is very much a thriving concept in Ontario. Superior Court Justice W.D. Newton has penned what I believe to be a very important decision: Balke v. O'Connor.  Although it was decided on 24 April 2017, remarkably the case has received no further mention other than a brief summary in "Epstein's This Week in Family Law", 2017, Issue #35 (4 September 2017). The decision deserves to have a much wider swath and this blog post is a step in that direction.

Mom's allegations in this child custody interim motion were fairly boiler plate: Dad was abusive and had difficulties with alcohol. Mom claimed to be the "primary caregiver". Dad's witnesses described him as an "excellent father" with "no issue with abuse or alcohol." Dad denied the abuse allegations; he claimed that mom had rage issues.

Mom presented three affidavits - all from her. Dad presented two of his own affidavits and nine other affidavits including the day care provider and mom's older sister. So, through his evidence, dad had effectively neutralized mom's allegations.

Justice Newton canvassed previous cases that uphold the principle that on interim motions, we should adhere to the status quo. Let us summarize:

1. Maintain the Status Quo: The status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change.

2. Unilateral action cannot create a new status quo: The phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation.

3. Status Quo = status quo prior to separation date: The status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties.

4. Best Interests above all: The court must consider the best interests of the children, including their needs and circumstances.

Justice Newton concluded that there was a status quo prior to separation where dad was an involved parent. Justice Newton concluded that mom's negative allegations against dad could not stand against the witnesses for dad. Applying the law of "status quo", the judge then ordered an equal shared parenting regime. He declined to make a formal custody order.

This decision deserves greater publicity. Not all judges may be so quick to believe a father's witnesses. But if you do not try, then you will not achieve an interim order that preserves the father/child relationship in a meaningful way. By the way, the child in this case was only three years old!

1 Comment

Internationally, lawyers and advocacy groups have been trying for years to nibble at parental equality in motions, laws, and practice directions by attempting to retain the best possible features of the status quo in interim orders. On the face of it, this is a reasonable strategy for incremental change, and it can benefit children and parents during the months or years of an interim order's effect. In the context of the family law, progress with this strategy is a significant achievement on the part of a lawyer and a notable accommodation by the court.

The pace of change with this kind of strategy remains agonizingly slow for living people. Children develop far more quickly than court actions. If an interim order preserves some good features of the status quo before separation, it may still reflect an imbalanced and uninformed view of the two parents' value to the child, and it may not lead to any arrangement approaching equal parenting in a final order.

The relief of suffering in a ruling such as this one is, nonetheless, well worth having.

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EQUAL SHARED PARENTING - CHILD CUSTODY INTERIM MOTION | Ontario Child Support Lawyers | Child Custody Law Firm