The Existing State of Status Quo in Parenting Hearings
The term status quo in family law parenting applications has become a significant term. When newly separated parents come to court for a parenting order, the Judge usually wants to know what the existing parenting arrangement is and was prior to separation.
In PDB v AJB, 2020 ABQB 298, the Court of Queen’s Bench of Alberta gave insight as to what the legal definition of the term status quo is, and how status quo factors into a court application when determining the best interests of children and parenting arrangements on an interim basis.
In PDB, the father applied in morning chambers for a parenting order for shared parenting. There were no previous court orders related to parenting. He argued that the parties shared parenting prior to separation. The Mother disagreed, stating that since separation six months prior, she had been the primary caregiver. While agreeing with the Mother for various detailed reasons, the Justice gave a thorough overview of caselaw related to status quo and produced the key principles for parents and Courts to know when considering the status quo in parenting arrangements. The Court held at para 18:
- the overarching factor is the best interests of the child or children involved;
- the status quo parenting is a factor in gauging the “best interests” interim parenting arrangement;
- that includes both the pre- and post-separation status quo;
- as between those two, the pre-separation status quo will usually be more significant (typically representing a longer period of parenting and the “baseline” for the family);
- a parent’s agreement, after separation, to a particular interim arrangement, should not be treated as a waiver of the right to seek a different (longer-term) arrangement15;
- the significance of the post-separation status quo may be particularly be diminished where: a. it is short-lived; b. it resulted from one parent’s (i.e. unilateral) decision (e.g. moving with the child or children); or c. it was affected by one parent’s inability, or reduced ability, to parent in the aftermath of the separation (e.g. arranging suitable accommodation and adjusting work schedules);
- on the other hand, the longer the post-separation status quo, and particularly where it extends beyond the “immediate adjustments” stage, the more significance that status quo may acquire. (For example, in Sorensen v Cooney (cited above), the chambers judge and the Court of Appeal both focused exclusively on the post-separation period, which had run for three years);
- on that aspect, a party may provide an explanation for apparent delay in applying for a parenting order i.e. other than simply agreement, or acquiescence, to a new status quo; and
- the status quo parenting (in either period) may be difficult, if not impossible, to determine in a chambers setting e.g. because of conflicting evidence. In such case, it minimizes or even disappears as a factor.
It is important to emphasize that status quo may be more significant for temporary parenting orders (when there is no conflicting evidence) and becomes less significant in a final determination of parenting, although it can still be a factor properly considered by a trial judge. In both types of hearings though, the overriding analysis remains the best interests of the child.
In a 2018 case, Sorensen v Cooney, 2018 ABCA 17, the top Court in Alberta referred to status quo as “the last parenting arrangement agreed to by the parties” (para 5). The Alberta Court of Appeal also discouraged multiple changes to interim parenting arrangements, stating “the status quo parenting arrangements should generally be changed only in a forum where the best interests of the child can be properly considered” (LDM v WFT, 2017 ABCA 106, para 7).
The task for judges in morning chambers who are hearing parenting applications is to find a temporary parenting arrangement/schedule until trial that is child-focused which means that it is the least disruptive to the child, the most familiar routine to the child (if possible), and in the best interests of the child.