Family

‘Sensitively written’ decision affirms law in child custody case

By AdvocateDaily.com Staff

A judge’s decision to maintain the status quo in declining a request by both parents for an interim sole child custody order is “helpful” in that it follows an approach taken by courts that has become fairly common, Toronto family lawyer Gene C. Colman tells AdvocateDaily.com.

“We don’t have any new groundbreaking law here, but the judge summarizes, I feel accurately, what the law is,” says Colman, principal of Gene C. Colman Family Law Centre.

“If you don’t have to make an interim custody order and therefore take all decision-making and parental authority away from one parent, why do it?” he says, adding that granting an interim order to one parent can prejudice the other when it comes time to decide on a final custody order.

The parents in the case each sought an interim order for sole custody after their separation, which began when the mother, an American citizen, took their four-year-old daughter from the family home in Ontario to Ohio — only informing the father, a Canadian, through a text message. The father also sought an order requesting the involvement of the Office of the Children’s Lawyer, and the court granted the request, despite opposition from the mother.

The Ontario Superior Court of Justice was charged with deciding what custody and access regime is in the child’s best interests “at this time.”

By taking the child unilaterally, without the knowledge or consent of the father, the mother engaged in “self-help,” Colman says. “Anyone familiar with Canadian case law knows you don’t engage in self-help. The courts don’t like that.”

Rather than taking the child from the family home, “legal remedies” are available when one parent believes the situation is urgent and they need to leave, he says. Those remedies include applying to a court without notice in cases where a party fears for their safety, and, in serious but less dire circumstances, bringing a motion on short notice, prior to a case conference, Colman explains.

Despite the abrupt departure of the mother, the two sides managed to work out a schedule where the daughter lived with each parent for six-week intervals, and the system worked smoothly “with co-operation and civility,” except for one instance when the father did not return the child to her mother, the court noted.

The decision illustrates the importance of the status quo in such a case — even though a child’s best interests always take precedence, Colman says.

In addressing the issue, the court said, “As a general rule, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests.”

Colman says that any party “who decides to violate the status quo does so at their own peril. You do not violate the status quo. The parties may disagree about what the status quo is, and they often do, but characterizing your case — providing it’s the truth — as a preservation of the status quo is going to hold you in good stead with the court.”

In this case, the judge “quite correctly focused on the status quo as it was when the case came before her. And she focused, as she should have, on how the child’s doing with this arrangement and decided to keep it the way it was,” he says.

In finding that it was in the child’s best interests to refrain from making an interim custody order, the court found that there was no evidence that the child is suffering any harm from the current arrangement, and that the evidence will be more complete when the matter goes before a trial judge.

“As to the desirability of an interim order, a court must be mindful that it may have a significant impact on the litigation. ... This may be particularly true in cases where, as here, mobility is an issue and the distance between the parties’ residences is substantial,” the judge wrote.

Colman calls the decision “sensitively written” in its attempt not to prejudice one parent over the other.

“If you awarded either parent interim custody, even if you kept the rotating six-week schedule, that’s going to entrench that parent and make them much less likely to settle. You don’t want to entrench the custody designation on an interim basis because you’re going to do more harm than good. I think judges increasingly are recognizing that, to their credit.”

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