THE STATUS QUO

To many this is a very upsetting term: the STATUS QUO!!! If you have already been exposed to it then you know what this is all about. If you are engaged in a matrimonial proceeding with children involved you may soon find out. Any way it goes it is a concept that needs to be dealt with.

At the outset I would like to be on record as being completely and unequivocally opposed to this legal concept which in my opinion creates a ridiculously unfair advantage to parents who make a conscious effort to manipulate the system, their children, and their estranged spouse.

Here is how it often goes: A couple separates and one of them leaves the matrimonial home. The reasons one of the spouses leaves are varied. Sometimes it is because there has been an allegation of domestic assault and the person is arrested and then prohibited by a restraining order from coming anywhere near their former home. On other occasions it has to do with just the need to separate and one spouse just packs up and leaves. When there are children there are logistical issues. If you are the subject of a restraining order or if you have simply moved without any preplanning, you usually have nowhere to go except to a friend’s house, back to your parents, or to a hotel. There is no place for the children and you need to wait until you are properly settled.

When you finally are settled in a residence that will accommodate your children you ask your spouse to agree that they live with you one half of the time. You are told there is no way that is going to happen. You are then accused of only wanting your children to live with you so you can get out of having to pay the full amount of child support. You consult a lawyer. You start a court proceeding. You are then told that you cannot then bring a motion about this issue until a case conference has been held. The only motions that can be brought before a case conference are those concerning urgent issues and having your children with you half the time is not considered urgent. This is the current law and procedure in Ontario.

By the time you have issued the Application and waited for and attended a case conference several months have passed. You can then schedule a motion which will take place another month or so down the road. When you finally do get to attend that motion you will hear the words ‘status quo’ spoken. The other side will request that the Office of the Children’s Lawyer be appointed to represent your children since you are (pick one or all): a dangerous person, a terrible parent, abusive, violent, mentally ill. The judge will no doubt comply with the request to appoint the OCL and will tell you that he/she will not disturb the status quo until the OCL has completed its investigation.

The OCL investigation will take six months if everything goes really, really well, eight months which is more the average, or even a year or more if you are unlucky. The OCL representative will interview you, your spouse, the children, your relatives, the doctor, the teachers and anyone else who is on their radar and who may have any information at all about the children or you. That all takes an inordinate amount of time.

At the end of that you return to court. This is about a year or more after you first requested that your children live with you half the time. First you will again be accused of wanting your children only to get out of your child support obligation, and then you will hear the dreaded words again:- the Status Quo. The judge will look at you and pretty much say exactly this: “The children are doing well in the current parenting regime. It would not serve them well to disturb the status quo. Motion dismissed”.

I have witnessed this many times over the years and in many different situations involving a parent trying desperately to be an integral part of their children’s lives. I have witnessed people do everything possible to manipulate the system in order to deny a deserving father or mother the right to have their children live with them half of the time. I have witnessed judges, in my opinion, take the easy way out by falling back on this unconscionable principle which needs to be discarded. Children want to be with their parents. Children are extremely resilient. In fact in other situations concerning the denial of access to a parent I have heard many judges brush off parental requests with the reasoning that the children will easily adjust later to a change in their routine once the issue is finally decided. Then they use the Status Quo to reward one parent for denying the other the right to maximize their time with their own children.

It is time to reassess the status quo.

STEVEN M BOOKMAN, LL.B, Ph.D. is the managing partner at Bookman Law Professional Corporation, a boutique family and estate law firm located at 1881 Yonge Street, Toronto. Steven Bookman can be reached at 416-488-2243 or [email protected]. Visit the firm’s web site at www.bookmanlaw.com.