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. [Added note dated 2 Feb. 2020: Balke v. O’Connor has now received favourable judicial mention on three occasions according to a Westlaw search.]
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!