COURT FILE NO.: FC-22-410(1) DATE: 2024/01/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANGELE DOLORESE STANWAY, Applicant AND: KEVIN ANDREW STANWAY, Respondent

BEFORE: Justice J. Breithaupt Smith

COUNSEL: M. Lambert, Counsel for the Applicant G. McLeod, Counsel for the Respondent

HEARD: January 17, 2024

ENDORSEMENT

Scope & Materials

[1] The Applicant (“Mother”) and the Respondent (“Father”) are the natural parents of one child, Deverick Yvan James Stanway born February 10, 2011 (“Deverick”). Each parent brings a motion before the court today; between the two motions, the court is being asked to address parenting time, decision-making responsibility and child support.

[2] The following materials were filed:

• Father’s Notice of Motion dated October 6, 2023;
• Father’s Affidavit dated October 6, 2023;
• Mother’s Notice of Motion dated October 27, 2023;
• Mother’s Affidavit dated October 27, 2023;
• Father’s Affidavit dated November 16, 2023;
• Mother’s Affidavit dated December 19, 2023;
• Father’s Factum dated January 11, 2024;
• Confirmations and Affidavits of Service.

[3] Although the question of Deverick’s enrolment in a public school, rather than the independent day school that he currently attends, is raised in Father’s motion, it is an alternative pleading and the parties were advised at the outset of argument that the focus of these reasons would be on the parenting schedule and child support.

Separation Agreement

[4] The parties are governed by a Separation Agreement dated March 8, 2019, which provides for:

• Joint decision-making, with Mother having the final authority – paragraph 6.2.6
• Shared parenting – paragraph 6.3.1
• Deverick’s residence in both homes to remain in the Region of Waterloo except on agreement or by court order – paragraph 6.5.3
• Child support at a reduced amount (to account for shared parenting) at the rate of $575 monthly – paragraph 7.1

[5] Each party relies on portions of the Separation Agreement. Mother submits that Father breached the parenting terms of the Separation Agreement when he: (1) reduced his parenting time to remove weekday overnights, including alternate Sunday nights, due to an increase in his work responsibilities in mid-2020; and (2) moved to Ingersoll (roughly 40 minutes’ drive from the Region of Waterloo) in June of 2022. Father’s view is that the COVID-19 situation and on-going negotiations between counsel took up the period from mid-2020 to May 2022, and that Mother obstructed his engagement on weekday evenings (including alternate Sunday nights) once he moved to Ingersoll.

Parties’ Positions

Status Quo

[6] Mother argues that the existing situation, whereby Deverick has not been in Father’s care on weekday overnights since mid-2020, creates a status quo that should not be lightly interrupted on motion. Father disagrees, stating that the combination of the COVID-19 situation, negotiations between counsel, and court delays ought not to be sufficient foundation upon which to base a status quo. In reply, Mother points out that she commenced the underlying Motion-to-Change litigation to address child support on the basis of the actual current schedule, which no longer sees Deverick in Father’s care for more than 40% of the time. She says it was not until she did so that Father took any serious steps to claim back his parenting time.

Parenting Issues

[7] The parties agree that Deverick should be in Father’s care on alternate weekends and once per week, but they disagree on the exact parameters of that time. Father’s understanding of alternate weekends, taken from the parties’ Separation Agreement, is that alternate weekends run from Friday at 8:30 a.m. (start of the school day) through to Monday at 8:30 a.m. (delivery to school). Mother’s position is that alternate weekends should run from Friday at 3:30 p.m. (after school) to Sunday at 7:30 p.m.

[8] A similar disconnect exists around Deverick’s mid-week parenting time with Father. Mother seeks only an evening visits on Wednesdays from 3:30 p.m. to 7:30 p.m.; Father seeks Tuesday at 8:30 a.m. to Wednesday at 7:30 p.m.

[9] Both parties agree that Deverick will remain enrolled in school in Mother’s catchment area.

Child Support

[10] Mother seeks child support at the rate of $775 monthly retroactive to January 1, 2023 on the basis of Father’s income of $83,131 and as Deverick has not spent more than 40% of his time in Father’s care. Father’s exact position is unclear; it is the Court’s understanding that he seeks to maintain the negotiated figure agreed upon in the parties’ Separation Agreement, namely $575 monthly.

Law & Discussion

Status Quo

[11] We must first analyse: (1) whether a status quo has been established; and (2) if so, the legal test for changing it on an interim basis.

(1) Has a Status Quo Been Established?

[12] At paragraph 9 of Davis v. Nusca, Justice Benotto, writing for the Divisional Court in an appeal from a motion wherein a mother had been granted leave to move to Sweden with two small children before trial, noted that: “the status quo relates not so much to a location as to the continuity of care.”

[13] At paragraph 26 of Grant v. Turgeon Justice MacKinnon reasoned that a status quo required consistent residency and was difficult to discern where there was “factual controversy as to when the children were with each parent.”

[14] Here, there is no such factual controversy: Deverick has been in Mother’s primary care and has spent alternate weekends and a mid-week evening visit with Father continuously for more than three years. From Deverick’s perspective – which is the court’s focus in assessing his best interests – he lives primarily with his Mother in Kitchener and visits his Father in Ingersoll. I find that this is the status quo.

(2) When Should a Status Quo be Changed on a Temporary Basis?

[15] What then, is the test for changing the status quo on motion? At paragraph 26 of S.H. v. D.K., 2022 ONSC 1203, Justice Dambrot writing for the Divisional Court put it this way (internal citations omitted):

[26] Parenting arrangements may be informal, they may arise from a separation agreement, or they may be fixed by an interim or final judicial order. From time to time, courts are asked to vary parenting arrangements in each of these circumstances on an interim or temporary basis. As stated by Pazaratz J. in F.K. v. A.K. and accepted by the parties before the motion judge here, courts must exercise caution before changing an existing arrangement that children have become used to, particularly where the change is sought on an interim motion. There is ample authority for this requirement. To refer to but one example, in Grant v. Turgeon, MacKinnon J. stated that “generally, 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. That is so whether the existing arrangement is de facto or de jure.” As was stated by Benotto J., as she then was, in Davis v. Nusca, “the basic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.”

[16] Thus, the court is to exercise caution, and to generally maintain the status quo unless compelling reasons necessitate a change to meet a child’s best interests. The reason is simple: children ought not to be bandied about between households while the litigation unfolds. Family circumstances fluctuate, and the wheels of justice turn slowly: from a child-focused public policy perspective, ever-changing parenting plans are not in the best interests of children whose lives have already been completely disrupted by their parents’ separation.

[17] I do part ways with Justice MacKinnon in concluding that the underlying source of the status quo is irrelevant. If it arises de jure, meaning from an existing Order of the Court (especially a Final Order), then a change in the parenting structure should be made in only the clearest of cases. Greater flexibility may be exercised if the status quo arises de facto, meaning on the basis of lived reality, having regard to the simple fact of delays inherent in post-separation negotiation and litigation. In my view, considerations applicable to the assessment of changing a status quo de facto, include:

• whether the parent seeking the change objected to the arrangement at its outset;
• what steps were taken by the parent seeking the change, including attempts at negotiation or mediation;
• whether the parent seeking the change commenced litigation quickly following the hardening of the parties’ positions;
• how closely the parenting proposal made by the parent objecting to the status quo resembles the children’s lived experience pre-separation or, if applicable, immediately post-separation;
• how much time has elapsed;
• how each parenting proposal impacts upon the children’s day-to-day lived experience; and
• the children’s views and preferences, where they can be reasonably ascertained.

[18] Here, the change to Deverick’s time with his Father (i.e. the discontinuation of the weekday overnights) happened at Father’s request. Father did not take any litigation action to have this parenting time reinstated until he was obligated to respond to Mother’s Motion to Change in which she seeks Guidelines child support. While Father’s proposal mirrors the Separation Agreement, and therefore accurately reflects Deverick’s original post-separation experience, four years have passed. During this time Father has moved out of the Region of Waterloo; Deverick would now experience a commute on the 401 to and from school on the weekdays when he is in Father’s care. Although the driving time is not itself unreasonable for a thirteen-year-old, the impact of this additional travel ought not to be minimized: for example, if Deverick forgets a school-related item at Father’s house, it cannot easily be retrieved. Finally, we do not have the benefit of Deverick’s own views: he is almost thirteen, and his voice should be heard.

[19] Having regard to these factors, I conclude that a change in the status quo is not in Deverick’s best interests.

Parenting Time

[20] As I have concluded that a status quo exists and ought not to be changed on a temporary basis, there is no need to conduct any further analysis regarding the parties’ competing parenting plans at this time. I would point out that Father is encouraged to maintain his position at trial should he wish to do so, as the full evidence available to a Trial Judge may well support a change in Deverick’s parenting schedule. I would recommend that the parties consider a request for the appointment of a lawyer for Deverick through the Office of the Children’s Lawyer under section 89 of the Courts of Justice Act so that his voice can be heard in this litigation.

Child Support

[21] It is undisputed that Deverick has been in Mother’s primary care since at least January 1, 2023. As a result of my decision herein, that will continue until trial. There is no longer a reason to deviate from the amount mandated by the Guidelines. Therefore, Father will pay $775 monthly commencing January 1, 2023 on the basis of his income of $83,131.

Temporary Order

[22] Temporary Order to issue:

1. The child, Deverick Yvan James Stanway born February 10, 2011, shall be in the care of the Respondent, Kevin Andrew Stanway, on the following regular schedule: a. alternate weekends from Friday at 3:30 p.m. (pick up from school) to Sunday at 7:30 p.m.; b. every Wednesday from 3:30 p.m. (pick up from school) to 7:30 p.m.; and c. such further and other parenting time as the parties may agree upon in advance in writing.
2. The child, Deverick Yvan James Stanway born February 10, 2011, shall be in the care of the Applicant, Angele Dolorese Stanway, at all other times.
3. Commencing January 1, 2023 and on the first day of each month thereafter, the Respondent, Kevin Andrew Stanway, shall pay to the Applicant, Angele Dolorese Stanway, support for the child, Deverick Yvan James Stanway born February 10, 2011, in the amount of $775 monthly on the basis of his 2022 annual income of $83,131 and in accordance with the Federal Child Support Guidelines (Ontario).
4. Child support ordered herein shall be subject to recalculation and adjustment at trial or upon settlement between the parties.
5. SDO to issue.
6. Costs submissions regarding these motions to be addressed as follows: a. The Applicant Mother, being the successful party, shall serve and submit to the court written submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with a detailed Bill of Costs and copies of any Offers to Settle by February 9, 2024. b. The Respondent Father shall serve and submit to the court responding submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) together with a detailed Bill of Costs and copies of any Offers to Settle by February 16, 2024. c. The Applicant Mother shall serve and submit to the court any reply submissions (not to exceed 4 pages in length, hyperlinking citations to any relevant caselaw) by February 21, 2024. d. There shall be no extensions to these deadlines. If a party fails to meet these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party. e. Submissions are to be directed to Kitchener.SCJJA@ontario.ca. It is imperative that it is indicated in the subject line of the covering email: (1) the court file number; (2) that these are costs submissions; and (3) that they are being sent to the attention of Justice Breithaupt Smith. f. The parties shall further ensure their costs submissions are filed with the Court.
7. All other remaining issues raised in the Respondent’s Notice of Motion dated October 6, 2023 and in the Applicant’s Notice of Motion dated October 27, 2023 are dismissed and both motions are to be marked as completed.

J. Breithaupt Smith J. DATE: January 30, 2024