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Old 10-24-2012, 04:45 PM
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Tayken Tayken is offline
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Default False Allegations - False Status Quo - Shaw v. Shaw cited!

Button v. Konieczny, 2012 ONSC 5613 (CanLII)
Date: 2012-10-05
Docket: FC-12-948
URL: CanLII - 2012 ONSC 5613 (CanLII)
Citation: Button v. Konieczny, 2012 ONSC 5613 (CanLII)

Very interesting matter. Judge notes the infamous "Shaw v. Shaw" case:

[16] I have not accepted that the mother’s actions or her counsel’s were intended to gain a tactical advantage. However, the two cases noted do assist regarding the status quo. Further along these lines the Court in Howard v. Howard reflex, (1999), 1 R.F.L. (5th) 375 (Ont. S.C.), noted that the only status quo that counts is the one that existed prior to the separation. In Shaw v. Shaw, 2008 ONCJ 130 (CanLII), 2008 ONCJ 130, (2008), 62 R.F.L. (6th) 100, the fact that the first order was granted on a without prejudice basis meant that it established no precedent as to custody and access between the parties.
Terrifying court record this one must be:

[19] The mother says that she was the primary caregiver pre-separation and therefore the existing access arrangement reflects the status quo regardless. The father says that he had equal involvement in the home as a parent. The parties have filed, by my count, over 25 affidavits to address this issue.

[21] Shaw v. Shaw, supra, has similarities to the present case. The younger of the two children, like Ethan, was three years old. The mother in that case was charged criminally for assaulting the father, and he was effectively given instant custody and she restricted access through the criminal process. When the matter came before it the Family Court determined the status quo to be the way the parties themselves arranged their affairs when they were still together. In that regard it was noted at paras. 19 and 20:
The evidence of the parties is not, at this early stage, tested by cross-examination. Both assert that they have been the primary caregiver to the children and that the status quo should favour their plan for the future temporary care of their children. …

Decisions made by courts at this early stage of a family court proceeding are made upon scant and untested evidence. Nonetheless, the parties are at this stage unable to bridge the gaps between their respective positions and the court must rule on the temporary care of the children in a sometimes rough and ready way. On the evidence before me, both parents cared equally for the children.
[22] Appreciating that this is an interim motion based on conflicting affidavits, I am of the view that the status quo in this case supports an order of shared parenting similar to the result in Shaw v. Shaw.
Glad to see Shaw v. Shaw leveraged in Case Law in this manner. My hats off to counsel who put this into the Book of Authorities or the Judge... Either way, hopefully they are reading Ottawa Divorce .com Forums - Powered by vBulletin.


[27] Although the mother is moving only a fifteen-minute drive from her current location, she has proposed moving the child’s daycare at this time. I note the evidence of the current daycare provider who, while she clearly supports the mother, indicates that the child does not handle change well. Given the disruption in Ethan’s life at this time, I am not persuaded that his daycare should also change.
Resulting in:

1) The parties shall alternate the care of Ethan week by week, until further order of the court or written agreement of the parties.
Standing ovation for this Justice!

Good Luck!
Old 10-24-2012, 05:03 PM
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I am so glad you posted this.

I now see what my stbx is attempting to do with her response to my application. Fortunately many of her claims are based on lies which I believe I can prove.
Old 10-24-2012, 05:05 PM
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:thumbs up:
Old 10-24-2012, 05:33 PM
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Originally Posted by Tayken View Post
I am glad too to see vBulletin getting some love, finally. Without them we'd be powerless.
Old 10-24-2012, 08:37 PM
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Thanks again Tayken
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