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Old 04-05-2007, 01:17 PM
logicalvelocity logicalvelocity is offline
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Default An interesting Judical View of Status Quo

I came across an interesting Judicial view of a "Status Quo" regime spanning a period of two years

In Buckholtz v. Lamey, 1999 WL 33198747 (Ont. S.C.J.),[1999] O.J. No. 4851, Madam Justice C.J. Robertson held the view:


...17 Legal submissions were made about the effect of the child's two-year status quo with the father. The father's lawyer presented cases where the continuation of the status quo was given great weight but they are distinguished by their facts.

18 The legal weight of status quo was succinctly stated in R. v. R. (1983), 34 R.F.L. (2d) 277 (Alta. C.A.) at 283:

It is at the time of an interim disposition that one should not lightly disturb de facto arrangements: See Cropper v. Cropper (1974), 16 R.F.L. 113 (Ont. C.A.). We should remind ourselves that interim custody is just that: a makeshift solution until the correct answer can be discovered. If a judge could tell what is best at the outset, there is no need for an interim order. Interim orders are designed to minimize conflict between parents and cause the least amount of harm to the child pending determination of the cause.

The interim dispute here was resolved by agreement. The parties sensibly made a working arrangement until trial. It does not follow that, because it worked, that arrangement is best for the child. And the parties cannot, at trial, be treated as having somehow waived the right to put a different proposal. Indeed, such a view would discourage future litigants from agreeing to workable interim arrangements. I would not encourage turmoil in this way. Also, courts should take great care not to permit a new status quo (created by delay) to decide what was not decided by interim disposition

19 A child's development, attachment and routine do not hibernate while the court process winds its way along. The consequence of trial delay worries non-custodial parents. Status quo is one historical indicator of stability for the court's consideration but custody is a present/future-oriented order based on all of the circumstances that comprise best interests.

20 For this family, the status quo includes the mother's history of responsible judgment in decisions about "K". She is more articulate than the father is and the child will benefit by her continued active participation in parental management. She has faced problems and moved on. The father has not experienced the same hurdles.

21 "Best interests" is a fluid concept. A social context is an important anchor in the interpretation of law. [FN4] Attitudes change slowly."

22 Neither party squarely raised the tender years' doctrine although outmoded concepts percolated through the evidence. Two of the husband's witnesses voiced uneasiness that a mother would leave a baby girl with a father. They were not openly critical of the mother but clearly were taken aback by her choice. M. L. did not abandon her child. She made a responsible decision based on her child's best interests. Good mothers sometimes leave toddlers with the father. G.B. is a worthy parent of this small girl. There is no statutory presumption of parental gender in custody decisions. There is specific statutory provision to the contrary. [FN5] Community perspective may not always reflect the law. This mother is progressive in her approach and it would be said if others looked down upon her for her maturity. There is no room here for the stereotype that if a father has care of a young girl, there is something deficient about the mother.
FN4. For discussion of this issue see R. v. R. (1983), 34 R.F.L. (2d) 277 (Alta. C.A.) at 285: "As recently as 1955, this rhapsodic commentary by Roach J.A. in Bell v. Bell, [1955] O.W.N. 341 (Ont. C.A.) at 344, attracted no adverse comment:

No father, no matter how well intentioned or how solicitous for the welfare of such a child, can take the full place of the mother. Instinctively, a little child, particularly a little girl, turns to her mother in her troubles, her doubts, and her fears. In that respect, nature seems to assert itself. The feminine touch means so much to a little girl: the frills and flounces and the ribbons in the matter of dress; the whispered consultations and confidences on matters which to the child's mind should only be discussed with Mother; the tender care, the soothing voice; all these things have a tremendous effect on the emotions of the child. This is nothing new; it is as old as human nature...

This view confuses cultural traditions with human nature; it also traps women in a social role not necessarily of their choosing, while at the same time freeing men: if only a mother can nurture a child of tender years, then it is the clear duty of the mother to do so; because the father cannot do it, he is neither obliged nor entitled even to try. Also, it is seen by some as self-perpetuating: by putting the female child in the custody of somebody who accepts the maternal role model so described, the rule ordains that she will have just such a role model at close hand during her most impressionable years. Thus, the "tender years principle", which at first glance seems only innocently sentimental, is seen by many as part of a subtle, systemic sexual subordination.

FN5. CLRA, s 20(1): Father and mother entitled to custody -- Except as otherwise provided in this Part, the father and the mother are equally entitled to custody of the child....

The result - Joint custody awarded for the child with consideration of the facts. The court deemed the mother to co-operate with the father during the period of status quo notwithstanding the father's effort to limit the communication between the parent's.


lv

Last edited by logicalvelocity; 04-05-2007 at 02:39 PM.
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Old 04-05-2007, 04:43 PM
Decent Dad Decent Dad is offline
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Well... the judge is correct here. The problem is:

a) this will almost never happen in court
b) and for sure this will NEVER happen if the genders were reversed

Sad... bad true.
  #3  
Old 04-05-2007, 05:39 PM
logicalvelocity logicalvelocity is offline
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Decent Dad,

I thought you would like that one.

It somewhat is a dated decision, but the significant cases cited and referred by that Justice for a joint custodial regime were:


Kaemmle v. Jewson, 50 R.F.L. (3d) 70 (an early case on parallel parenting regimes)

http://www.ottawadivorce.com/forum/a...8&d=1172422044


and

Walsh v. Walsh, 111 O.A.C. 118, 39 R.F.L. (4th) 416, [1998] O.J. No. 2969, an Ontario Appeal Court decision that affirmed the earlier trial Joint custody decision.


Both cases are still often cited for joint custody


lv
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