Where parties are claiming custody of or access to children, either or both of the parties may apply to court for an interim order for custody or access. An interim order is one that is made after the proceedings have been started but before the trial.
The court must consider what is in the best interests of the child in making an interim order for custody or access. There has been a tendency for courts to presume that the status quo that existed at the time of the interim application should be preserved until the trial, and that preserving the status quo is in the best interests of the child. The exception to this is where there are particular reasons why the existing custody and access arrangements should not continue.
This presumption of preservation of the status quo until trial was brought under scrutiny by Mr. Justice Rogers in the recent decision of O.T.H. v. S.L.H., 2003 BCSC 1399, a case in which Mr. Lorne MacLean appeared for the Plaintiff, O.T.H.
The case of O.T.H. v. S.L.H. was an appeal from an earlier decision of the Honourable Master Baker. Part of the Defendant S.L.H. appeal in this case was from Master Baker decision to award week-on, week-off access for both parents. The Defendant S.L.H. position on appeal was that the status quo that had existed since separation had been upset by Master Baker decision to award week-on, week-off access.
The Defendant S.L.H. argued on appeal that where the status quo has been established, the party seeking to change it should have to provide evidence that the status quo does not serve the child‚Äôs best interests. Mr. Justice Rogers found that the Defendant’s position was a valid statement of the law where the status quo currently serves the child’s best interests.
However, Mr. Justice Rogers also held that in a case where the court has not confirmed that the status quo is in the child’s best interests, then the question of whether or not the status quo actually is in the child’s best interests must be considered.
With respect to the Defendant’s position in this case, Mr. Justice Rogers stated (at page 13, paragraph 28):
It cannot, as Mrs. H. suggests, be the case that simply because the status quo has pertained for, say, a year and a half, that it must ipso facto serve the child’s best interests. That is, in my view, extremely faulty reasoning. One does not, just because the child has had his primary residence with one parent for a year, conclude that that arrangement is in that child’s best interests. That arrangement may, in fact, have been contrary to the child’s best interests from the outset. It is for the court on an application to upset the status quo to determine where the child’s best interests lie. This is, I believe, one of the bedrock principles of family law.
In this particular case, Mr. Justice Rogers found that Master Baker had properly considered the status quo since separation, which was that the children had been residing primarily with the Defendant S.L.H., and the children’s own wishes to spend more time with their father, the Plaintiff O.T.H., as well as considering the parent’s wishes in this regard.
In all the circumstances, Mr. Justice Rogers concluded that Master Baker had ordered shared residency on a correct understanding of the law that the status quo is nothing more than that and it is for the parties to adduce evidence for and against its continuation.” (at page 15, paragraph 30).
The Defendant S.L.H.’s appeal from Master Baker’s order regarding shared residency on a week-on, week-off basis was accordingly dismissed by Mr. Justice Rogers.
