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Old 08-30-2013, 12:06 PM
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Default Question: "more specifics on the importance of status-quo"

Hi All,

First thank-you to Janibel for asking a very relevant and interesting question. I have moved this discussion to a new thread as it is quite an important topic.

It was originally posted here.

Quote:
Originally Posted by Janibel View Post
"Two “truisms” were identified in this case law by Justice Pazaratz:
1. The first is that “status quo” is important. Perhaps the first piece of legal advice separated parents get is that temporary arrangements often come to be self-perpetuating. That’s why parties work so hard to stake out their turf; create patterns; and obtain favourable temporary (or even temporary-temporary) orders."

Forgive me if this question is off topic or has been explained elsewhere, but could you give me more specifics on the importance of status-quo and what 'real' impact it can have on any given case.

Whenever the term comes up, my lawyer's eyes light up like a X-mas tree - he keeps repeating how wonderful this is, how good it is that I have it, that it will eventually be in my favor ... but never actually explains why? When there are no children involved, what's the advantage?
Could you give me more specifics on the importance of status-quo?

See this definition below here:

Quote:
Family law Courts also look at what arrangements already exist. This is called the status quo. If the child’s living arrangement is working well, the Court may not want to make big changes.
Now looking at the incident of "status quo" in this case law:

Quote:
386. Mr. Drouillard testified that – however it happened – the Applicant has been (the child's) “primary caregiver” and both she and the child have been doing quite well. He felt that this “status quo” was an important consideration in formulating his recommendation of sole custody to the mother.
So, here we see how a OCL investigator leveraged the broad definition of "status quo" to recommend that the "mother" (in his opinion, which was "devistated" by the Respondent father) should be the "primary caregiver" to the child in question.

Expanding on this topic of "status quo" and from the same case law:

Quote:

MANIPULATION

393. Under questioning Mr. Drouillard acknowledged a couple “truisms” well known among lawyers, judges, social workers – and frequently litigants themselves.

394. The first is that “status quo” is important. Perhaps the first piece of legal advice separated parents get is that temporary arrangements often come to be self-perpetuating. That’s why parties work so hard to stake out their turf; create patterns; and obtain favourable temporary (or even temporary-temporary) orders.

...

397. Mr. Drouillard described the relationship between the parties as being "very high conflict". He said each party made numerous allegations about the other. Things were particularly bad whenever the parents had direct contact. He said some of the conflict was "situational" in the sense that custody litigation represents a time of high emotional crisis for both parties, and they were likely each behaving at their worst. But he doubted the conflict will end when this court case is completed. He said that’s why he ruled out joint custody (which he mistakenly believed the Respondent was seeking). That’s why he recommended sole custody. And with the mother having the status quo, that’s why he recommended sole custody to the mother.

398. Just like those “truisms” would have predicted.
So here, we see that the mother had established through previous motions on what later in this case law is identified as "manipulations" and "falsehoods" and this "expert" whom should have seen the "truism" was so scared of disrupting the "status quo" that he simply just recommended it.

Basically what I am stating is that even in the face of such nonsense, allegations, missrepresentations and falsehoods, just because the Applicant mother had obtained "status quo" on previous orders (through deceit) this "professional" from the OCL did not want to disrupt the "status quo" despite the findings (which maybe the OCL failed to see?) of the justice in this matter.

Which all boils down in this element of the case law:

Quote:
416. I find it troubling that he seemed to ignore so many obvious signs of manipulation and deception. We now know that much of what the Applicant told a motions judge in her December 2, 2009 affidavit was untrue. And yet those lies changed everything, not only for the Respondent, but also for (the child). A new status quo was created. With profound implications.

417. Given the fact that the social worker predicates his sole custody recommendation on his “assumption” that the mother will be properly motivated and better behaved in the future, it is unfortunate that he failed to test or challenge any of the Applicant mother’s manipulative and self-serving behaviours – in circumstances in which the Respondent virtually pleaded with him to look beyond the surface.

418. Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

419. If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.
So, here the Applicant mother created "status quo" through falsehood and deception and a "professional" (who in my personal opinion should have known better!) went-along with the "status quo".

Which is all summed up in paragraph 566:

Quote:
566. The Respondent father shall have sole custody of the child...
So, your "lawyer's eyes light up like an X-mas tree" and stating "how wonderful this is"... Is that often, even when children are not involved, establishing a "status quo" can "win" you something in court.

I am not one to recommend people leverage "status quo" as a arguing strategy. There are valid points to having a status quo and then there is the ugly side.

For example, (no children involved situation over a house)...

If the other party to the matter moves out of the "matrimonial home" for 6 months it doesn't establish (possibly) the necessary "status quo" to claim "exclusive possession" of the matrimonial home. You can't unilaterally go out and sell the house without the consent of the other owner of the home etc... Just because you are the one residing there.

I would caution you to be very mindful of how your lawyers "eyes light up" at all times... It is not always a "good thing" for either party in the matter.

Good Luck!
Tayken

Last edited by Tayken; 08-30-2013 at 12:09 PM.
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Old 08-30-2013, 01:55 PM
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This is a vicious cycle…..how do you get anywhere with this?
If you don’t challenge status quo to increase access and you can’t get increased access due status quo, how is that in the best interest of the child?

States maximum access for the child of the marriage but when it comes time to do this in some cases the court fails the child by letting status quo prevail.

Can anyone provide cases where status quo was challenged and the person won an increase of access?

What is considered as a reasonable change is circumstance to challenge status quo?
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Old 08-30-2013, 02:18 PM
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Quote:
Originally Posted by Tayken View Post

I would caution you to be very mindful of how your lawyers "eyes light up" at all times... It is not always a "good thing" for either party in the matter.

Good Luck!
Tayken
Point well taken, I'm starting to have serious trust issues concerning my lawyer's motivation ... not good.

"If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo."

Absolutely, but there again, that would be in a perfect world.

"Collectively, apathy may be expressed in social, economic, political or ideological paralysis, with all the available energy for change locked up in the institutions, systems and structures of society. Delays that can be avoided may trigger productivity losses, but they can also wreak havoc on people's lives."


Personally, I feel that "status-quo" is just another fancy legal term for nothing-is-going-to-change-until-we-go-to-court-so-pipe-down-and-deal-with-it. That explains why I fail to see status-quo as being a favorable thing to either of us, more like a band-aid measure to shut us up until a more in depth solution can be found.
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Old 08-30-2013, 02:41 PM
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Quote:
Originally Posted by good_mom View Post
Can anyone provide cases where status quo was challenged and the person won an increase of access?
Hi good_mom,

I highly recommend you read all the content and links. The case law I am depnding upon to answer the answer is this case law:

CanLII - 2011 ONSC 6451 (CanLII)

I highly recommend you read it in full (end-to-end). It should answer all your questions.

Quote:
What is considered as a reasonable change is circumstance to challenge status quo?
It has to be a "material change in circumstance" usually. But, the courts are hearing more motions for increases in access as it is often in the "best interests" of the children. I recommend you research the concept of "material change in circumstance". You can Google the term and find mountains of information. Lots on this site too of course.

Good Luck!
Tayken
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Old 08-30-2013, 05:20 PM
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I've read that status quos are not "officially" considered when they are created by temporary orders.
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Old 09-03-2013, 02:45 PM
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Quote:
Originally Posted by Links17 View Post
I've read that status quos are not "officially" considered when they are created by temporary orders.
You are somewhat correct in your assumption Links17. In most cases in the year 2013 when a matter goes to trial *most* (not all) justices don't give much weight on the "status quo" argument. People try to establish status quo for all sorts of reasons and mostly because up until about 5 years ago it was really really important. But, with justices like Pazaratz and this justice cited here questioning the nonsense that revolves around "status quo" is somewhat disappearing. The important factors of the "best interests" test and the "maximum contact principal" have far more weight in 2013 than "status quo".

The challenge being is that you can't get a judge on motion to upset an ordered status quo quite often so these matters often have to push to trial.

It is easier to turn over a status quo obtained on motion than one granted on consent through agreement. For example, parents who agree to the EOW situation and custody to the other parent... These people consented to the status quo and it wasn't ordered against them. These parents shouldn't automatically think that the "status quo" doesn't apply in their matters. It is quite significant that they consented to not be an equal joint custodial parent with equal access (joint residency) of the child/ren.

Good Luck!
Tayken
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