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Calgary Stay Of Support Enforcement

Calgary Child Parenting Status Quo lawyers deal with whether the Court on an interim child custody and parenting time and responsibilities dispute hearing should “change horses” on the parenting and custody scheme midstream. This, of course, depends on how the child is doing under the status quo regime. Peter Garburn, senior Calgary family lawyers explains the rules.

Calgary Child Parenting Status Quo 1 877 602 9900

It is trite to say that determining custody and access (more commonly called parenting time) of your children with your separated ex-spouse is an extremely difficult and emotional decision – each parent wants their child(ren) with them as much as possible.  Sometimes ex-spouses can make this decision between themselves, but sometimes not – sometimes this issue goes to Court, where a Judge or Justice is empowered to make this decision on behalf of the parents.

But how do Calgary Child Parenting Status Quo lawyers and Judges make this decision? In previous articles (TOP 5 PARENTING TIME PRINCIPLES (Parts 1 & 2): ; ) we discussed some of the parenting principles Judges may apply to decide the issue of parenting of children in family law cases, including:

  • Maximum Contact with Each Parent;
  • Incremental Increases in Parenting Time;
  • Short, Frequent Contact with Each Parent;
  • Voice of the Child, and;
  • Best Interests of the Child.

But another principle often applied in deciding parenting issues (particularly where one parent is considering moving away from the usual community, called “mobility”) is the issue of maintaining the parenting “status quo”. So what is Calgary Child Parenting Status Quo and how does it impact decisions on child custody and parenting time?

What is the Child Parenting “Status quo”? 1 877 602 9900

The parenting “status quo” refers to the current parenting regime or arrangement that the Judge is being asked to either change or maintain. Isn’t the presumption always in favour of maintaining the current parenting regime or arrangement, ie. the parenting “status quo”? Peter Graburn senior Calgary Child Parenting Status Quo lawyer explains that if the current regime has been going on for a reasonable period of time and the child is doing well in the current stable regime, then usually yes.  But the Judge has to go through a very specific legal process and test to do so. What if one parent simply blocked involvement or maximum contact to set up a status quo that favours them retaining their child but that status quo isn’t really in the best interests of the child? Lorne Maclean, QC won a victory setting aside the status quo and replacing it with a shared parenting regime for Olympic Gold Medallist Ross Rebagliatti in a decision that sent shock waves across BC.

The first step (as always) is to look at the legislation. The Divorce Act says that the Court must take into consideration only the “best interests of the child” based on the “condition, needs, means and other circumstances of the child” (Section 16(8)). There are many specific factors the Court may look at to determine what is in the “best interests of the child”.  The 1993 Supreme Court of Canada case of Young vs. Young (4 S.C.R. 3) (won by MacLean Law founder Lorne MacLean, Q.C.) confirmed that the “best interests” test is the only test applicable in parenting matters and that the test is necessarily broad, but that the only specific factor the judge must consider is the “maximum contact” principle set out in the Divorce  Act (Section 16(10)).

Alberta cases (both older and recent) have further refined the process and test the Judge has to go through in reviewing the parenting “status quo” regime.  In Vandenberg v. Vandenberg (2000 ABQB 703), the Alberta Court of Queen’s Bench held that the parenting status quo should ordinarily be maintained until a final determination of parenting is made (ie. at a hearing) unless there is clear, compelling evidence that the best interests of the child requires a change of the current regime, holding (at para. 25):

“When a Court is asked to change the primary residence of children of a marriage, it approaches the task seriously.  There must be compelling reasons to make the change.  The compelling reasons must show that it is in the best interests of the children to make the change.  Changes are not made on the basis that there might be a possible benefit accruing to one or more children.  The benefit to be obtained must be self-evident.  Only then should the Court act…”

In more recent cases (Crawford v. Crawford, 2015 ABCA 376 and Shwaykosky v. Pattison, 2015 ABCA 337), the Alberta Court of Appeal held that substantial changes to parenting regimes should not be made on interim, non-final applications without oral evidence of the parents, stating:

“Except in the case of urgency and only where it is clearly in the child’s best interests, substantially changing a parenting regime in chambers without the benefit of viva voce evidence is a practice that we do not endorse.  This Court has said on several occasions that in the absence of seriously compelling circumstances, doing so is fraught with problems, is often procedurally unfair, may lead to protracted litigation and moving children unnecessarily…”

Calgary Child Parenting Status Quo CONCLUSION

On its face, the parenting status quo principle seems to make good sense.  However, while there may be a presumption that the Court will continue the parenting status quo on an interim Court application if the child is doing well in that regime and there is no evidence that the regime is not in the child’s best interests, this is not guaranteed.

Also, as indicated in the previous articles, this presumption may conflict with the “incremental increase in parenting time” principle that gradual, structured increases in parenting time over time is generally in the best interest of children. If the status quo is automatically enforced, how does one parent increase their parenting time with their child, particularly where that parent has been granted or exercised less time than the other parent (ie. a non-shared parenting regime)?

Our Top Rated* Calgary Family Lawyers Can Help

Calgary Child Parenting Status Quo Lawyers help their clients understand the legal process and test a Judge must go through to either change or maintain the current parenting “status quo” regime on an interim, short-term basis, and the sometimes contradictory parenting principles the Judge must weigh in making that decision on behalf of separated parents.

*Top Choice Award (2014, 2016, 2017 2018, 2019), Top rated reviews on Google, Yelp, threebestrated, lawerratingz.com. Read more about our awards.