Status Quo and Parallel Parenting

[robbie]

I've been reading a lot of the posts here and it's my understanding that Judges do not like to change the status quo. That being said, is it still possible to seek a parallel parenting regime even when status quo has been established?

Obviously my wife is the primary care giver. I work and she does not which means she has time to devote all her attention to our daughter. I do the best I can, but the reality is that I have to go to work to support us. As I have left the family home, and she is clearly the primary care giver, is it still possible to seek parallel parenting?

I want to play a large role in my daughters life. I want to be involved in her schooling and other events in her life. I want to do homework with her and read her stories, give her baths and take care of her in all ways. Will this "status quo" take that from me?

[logicalvelocity]

robbie,

If your in Ontario until an order from the court or a separation agreement provides otherwise, BOTH parents have coextensive custody of their child.

See section 20 of the Children's Law Reform Act R.S.O. 1990 c. C.12

Father and mother entitled to custody

20. (1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

Rights and responsibilities

(2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).

Authority to act

(3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).


Where parents separate

(4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).

So if your child remains with the other parent, the authority to act as a parent is suspended but not ended. The term defacto custody
is sometime referred in this situation. However, see section 20(7) of the act

Entitlement subject to agreement or order

(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. R.S.O. 1990, c. C.12, s. 20 (7).

Therefore, until a court or a separation agreement provides otherwise BOTH parents still have coextensive custody of their child.

Generally the courts will not interrupt the status quo living arrangement of the child. However, nothing prevents you from bringing an order of sole custody and subsequent failing that Joint Custody - on a parallel parenting model.

In the recent Ontario Court of Appeal case of Kaplanis [1.] the court held that historical communication and co-operation in the best interest of the child has to prevail. In this case the appeal court set aside the trial courts award [2.] of joint custody regime for the child. Since the father never brought forth a claim for sole custody of the child, the court concluded that they had no other choice than to award sole custody to the mother.

Appeal Justice Karen Weiler states in paragraph 2 of the judgment:

[2] For the reasons that follow, I would agree with the mother that the order of joint custody should be set aside on the grounds that the trial judge erred in principle in awarding joint custody (a) where there was no evidence of historical co-operation and appropriate communication between the parents, and (b) in the hope that it would improve the parenting skills of the parties. I would also agree that the trial judge exceeded her jurisdiction by making an order that the parties attend counseling and by imposing on them a requirement that, in the event they could not agree, the unnamed counselor was to decide the matter for them. Inasmuch as an order for joint custody is not appropriate, and the father did not seek sole custody of the child, I would order that the mother be awarded sole custody of the child.

[1.] Kaplanis v. Kaplanis, (2005), 249 D.L.R. (4th) 620; (2005), 10 R.F.L. (6th) 373; (2005), 194 O.A.C. 106, http://www.canlii.org/on/cas/onca/20...onca10071.html

[2.] Kaplanis v. Kaplanis, (2003), 42 R.F.L. (5th) 373, http://www.canlii.org/on/cas/onsc/20...onsc12719.html

With this golden rule prevailing - "historical co-operation and communication," may give one parent incentive to deliberately choose not to communicate or co-operate in regards to the best interest of the child with the other parent in an effort to pursue their claim for sole custody. Courts are aware of this tactic, However, the onus rests with the individual who alleges such conduct to prove same on the balance of probabilities. Therefore it makes sense to to bring forth a claim for sole custody and have an effective parenting plan in place and subsequent failing that joint custody regime for the child.

In regards to caring for your child or an effective parenting plan, Keep in mind that having a child enrolled in daycare is acceptable this day and age. In your situation, your child is older, attending school and therefore daycare would be a minimum. Perhaps as an alternate you could arrange a flex work schedule to accomodate your child or have a close extended family member care for your child for certain periods that you are obligated to be in employment.


lv