I share an unreported decision released by Her Honor, Justice PA Hardman from October of 2019 where I was counsel of record. It is an enlightening decision, one that taught me a lot about the issue of status quo and when to challenge existing status quo.
No names are mentioned in the decision, only initials.
The decision is self-explanatory. A few background facts will suffice:
My client was the mother of a now 9 year old girl. My client lived with her father (grandfather of the child in the case) and his wife (step grandmother) for the first few years of the child’s life. Mother wanted to live at her parents’ home.
Step-grandmother has developed a close bond with the child and has been taking care of this child a lot. When the mother wants to leave with the child to start a new life, step grandmother calls up the CAS to do a welfare check on the child (the CAS finds that everything is okay). So, then step-grandmother moves an emergency motion WITHOUT NOTICE to the mother in the Court in Owen Sound alleging safety concerns by the mother and convinces the Judge to issue an emergency order to return the child to the grandparents on the ground that the mother has not been taking her medication. The Judge issues the order to return the child to the grandparents.
Thereafter, it takes another 5 years for this mother to get back her child - 5 precious years that this mother has lost out on her relationship with her daughter.
As the case winds through the court, the following questions need to be kept in mind by the reader, and especially as one reads the attached judgement:
1. Impact of the emergency without notice motion moved by the grandmother that effectively created a status quo in favour of the grandparents.
2. An OCL clinical investigator’s report that recommended the return of the child to the mother because the OCL found that the grandparents had alienated the child from the mother by not even permitting regular court ordered access.
3. Despite the OCL report, there was initial judicial guidance that due to the lengthy status quo of the child with the grandparents, irrespective of the reason that caused this status quo, there should be no reason to now transfer the child back to the mother.
However, the mother was determined to go to trial and have her day in court. I supported the mother and fought hard for her and WON completely. At the end of a 11 day trial, the Judge ordered the child to be returned full time to the mother given the alienation caused against the mother by the grandparents and ruled that such alienation was against the best interests of the child, despite a lengthy status quo.
So, folks, what is the lesson learnt from this?:
Go with your instinct and be ready to fight to the very end. Do not be deterred by status quo, especially if you have a positive OCL report in your favour. Of course, if the OCL report had been against the mother, that may have been a different story.
At SHANKAR LAW, we are ready to support and guide you and fight with you till the end. At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life: matrimonial issues; divorce; equalization; custody and access; support; child protection; CAS - we have seen it all!