Custody & Access
Maintaining the Status Quo in Divorce
In Cosentino v. Cosentino¸ Justice Pazaratz was asked to make a temporary order in a dispute between two parents who were fighting over what city their three-year old child would attend junior kindergarten.
The parties started living together in 2011, and were married in July of 2012. Their only child, Christian, was born on December 16, 2012. They separated three years later, in July of 2015.
The father continues to live in the matrimonial home on Hamilton mountain whereas the mother moved to Niagara-on-the-Lake, where she resides with her new partner.
Within a month of their separation, the parties executed a detailed, five-page separation agreement which included provisions for shared 50/50 custody of Christian, various provisions dividing expenses equally, with each parent responsible for the child during their portion of the shared time, as well as the following clause which became the subject of the dispute:
Preference for schooling will be discuss (sic) as needed & French Immersion options as he will attend either the school beside the condo (Annunciation) or St. Peter & Paul for French immersion (Sept 2016).
The Mother’s Request
The mother brought a motion requesting a temporary order be made, and requested the following:
- That Christian be enrolled in junior kindergarten at St. Michael’s Catholic Elementary school in Niagara-on-the-Lake, commencing in September 2016
- That in the alternative, Christian was to commence school in Niagara-on-the-Lake beginning in January 2017
- That, if Christian were to attend school in Niagara-on-the-Lake, the father was to have timesharing weekends on three weekends per month one mid-week visit one day per week until 7:30pm, with the mother transporting the child for the start of the father’s weekends, and the father being responsible for transportation at all other times.
The Father’s Request
In response to the mother’s request, the father requested:
- That Christian be enrolled in junior kindergarten at Annunciation of Our Lord School in Hamilton, commencing in September
- That the parents continue to share time with Christian on a 2-2-3 rotation
- That, in the alternative, Christian to reside primarily with the father, and the mother to have three weekends per month, and whatever mid-week evening access she could accommodate.
The Court’s Comments on Temporary Orders
As always, Justice Pazaratz made some insightful and illuminating comments about the decision he had been asked to make:
At first glance, a motion about junior kindergarten might appear quite straightforward. Almost innocuous. Niagara-on-the-Lake or Hamilton? Sounds simple enough.
But in reality, deciding where a three year old starts school has the potential to impact – and perhaps even determine – the long-term outcome of what is rapidly turning into a bitter custody dispute.
Indeed, the decision about Christian’s schooling was an important one, for a number of reasons:
- Once Christian was enrolled in school he would inevitably remain there for the entire duration of the school year
- Enrollment in a school in either city would mean that his primary residence would shift in favour of the parent who lives in that city. The equal parenting/equal time format would not be viable given the distance between the two cities
- Once Christian becomes used to a particular school, there will be inevitable concerns about disrupting his routine, his familiar surroundings, and his relationships with teachers and other kids.
- After a primary residence was established, the likelihood of reverting back to equal time, not to mention the reversing of the primary residence, would be “quite remote”. As long as the parents continued to live about one hour away from one another, equal time and mid-week transitions would be problematic.
Justice Pazaratz noted that:
Temporary orders can have a huge impact on final orders. Effectively, they can have a forever impact on children. As a result, motions judges must be mindful of both short-term and long-term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral action of either party…
Justice Pazaratz went on to say that even though this was a request for a temporary order, it was necessary to take a cautious approach in order to safeguard the best interests of the child, and avoid the “reckless creation of a new status quo”.
He criticized the mother’s request, pointing out that:
- The parents had shared equal time with Christian since their separation, which had been beneficial to him
- The reason this status quo was now in jeopardy was because the mother decided to move one hour away
- Despite assurances from the mother’s lawyer that the father would be given “make up time” with Christian on weekends and holidays, granting either parents 100% of time on weekends was not a desirable or sustainable arrangement.
- Depriving the father of any involvement in Christian’s schooling represents a “fundamental departure” from the agreement the parties had entered into
- Christian had been born and raised in Hamilton, with extensive family supports in that city, as well as doctors, dentists and other professional connections
- Christian had been Hamilton based since before the separation, had has been Hamilton based since. Through her request, the mother is now trying to unilaterally make Christian Niagara based.
- This is not just an issue of where Christian is to attend school, it would entail a number of fundamental changes, including a diminishment of his relationship with his father, as well as changes to general custody and mobility issues.
- The mother had not presented any evidence with respect to why she had to relocate to Niagara-on-the-Lake, or why she and her new partner could not relocate to Hamilton, or closer to Hamilton.
Justice Pazaratz also stated that major changes that had mobility implications for children should not be made on a temporary basis, except in rare or compelling circumstances, of which this was not the case.
He clarified that:
The issue is not whether a parent should ever be allowed to relocate a child’s residence an hour away. The abundant caselaw on mobility makes it clear that in appropriate circumstances – after thorough consideration of all of the evidence — much greater moves have been approved as being in the best interests of the child.
The issue is whether a parent should be allowed to unilaterally impose a change to a child’s routine which will subvert a successful status quo, and create an entirely self serving new status quo in the middle of a custody dispute and in the middle of a section 112 investigation.
The Court’s Final Decision
Justice Pazaratz issued the following temporary order:
- The father is entitled to enroll Christian at Annunciation of Our Lord school in Hamilton
- There is a presumption that the parents will share equal time with the child, including alternating weekends
- The mother will be responsible for transporting Christian to and from her residence in Niagara-on-the-Lake
- The mother will ensure that Christian does not miss any school while in her care
- If the mother is unable to maintain an equal time sharing arrangement (including alternate weekends and some weekdays), she will have the option of having Christian three our of four weekends and one overnight mid-week visit, with advance notice to the father.
If you have questions about child custody or support arrangements, or changing the status quo, call Windsor family lawyer Jason P. Howie at 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.