In this brief decision in Gardner v. Greenspan, 2020 ONSC 5079, Justice Jain went into this issue of determining how a final custody order may be changed if at all at the interim stage.
In this case, McDermot J. originally ordered the parties to return to the status quo, being the 2:2:3 schedule. He further ordered that since the RM was on maternity leave, the RM would provide child care when the AF was working (instead of using a third party care-giver). The parties then agreed to the balance of the terms in minutes of settlement which continued the shared parenting schedule and specified that all the exchanges were to take place at the end of the driveway at the mother’s home.
Justice Jain made the following observations:
[5] I agree with the submissions of Mr. Craig that the law is clear on the issue of a motion to change primary care, parenting time and primary residence. Although the best interests of the child are the ultimate arbiter, the moving party seeking the change must demonstrate compelling evidence warranting an immediate change in the parenting schedule for the child.
[6] The existing temporary order and agreement is presumed to be a well thought out, reasonable and rational decision by the judge and the parties at that time. It is not easily tampered with, (and neither is the status quo). Therefore, the issue is whether there are grounds to order another temporary change to that temporary order. As stated by McDermot J. in his decision Psaila vs. Sandurska dated July 10, 2020:
[11] for an interim change in custody and access to take place, the court must find that two factors are satisfied:
a. There must have been a material change in circumstances permitting the court to make a change: see s. 24 of the CLRA; and
b. If that material change is proven, there must be sufficiently compelling circumstances to make that change in custody: see Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda, 2013 ONSC 7869, Green v. Cairns, 2004 CanLII 9301(Ont. S.C.J.) and Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331(C.A.). In Grant v. Turgeon, 2000 CanLii 22565 (Ont. S.C.J.), MacKinnon J. notes the required circumstances for an interim variation of custody as being “exceptional circumstances where immediate action is mandated.” In Miranda v. Miranda, 2013 ONSC 4704, Mitrow J. stated that the party seeking to change a status quo has a very high onus, clarifying at para. 26 that a “party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo”.
Analysis:
It is very difficult to change either a status quo or a long standing final order on the basis of an interim order. One has to have incredibly supportive evidence to justify such an interim motion. This is very hard and happens in the rarest of rare cases. One has to have a practical and realistic view of the case and it would be better, for cost purposes, not to bring such a motion on an interim basis in most cases.
At Shankar Law, we will be honest and transparent with you – we will tell you as it is. We will advise you if we feel it is not possible for you to win on an interim motion to change the status quo or a final order.