Can an agreement between a father and his partner establish a status quo?

In the case of Balke v. O’Connor, 2017 ONSC 2491, the court did not find that an earlier agreement established a status quo as it was the result of a “without prejudice” order. The Father in that case then brought a motion for parenting time at his earliest opportunity, which was approximately 8 months after the “without prejudice” orders were made.

In the case of Sharaf v. Zahab, 2018 ONSC 4801, the court did not accept that the “without prejudice” order of November 22, 2017 was the status quo that must be maintained. The court recognized that after the case conference, the Father took the first opportunity to bring his motion for additional parenting time. The court recognized that the Father consented to the without prejudice order, because it was the only way for him to obtain any access to his child until he brought this motion. The first return date he could obtain was April 5, 2018, although it was adjourned a number of times thereafter.

In applying the best interests test, the court must be mindful of the passage of time since a post-separation regime has been in place and its significance given the age of the child. Where only a short amount of time has elapsed between the deliberate creation of a new status quo and the hearing of a temporary motion, the court will be more inclined to presume that a restoration of a previous successful status quo is appropriate. Conversely, the longer the child has been in the new situation, however it is created, the most closely the court will have to focus on the child’s best interests, as opposed to any violation of parental rights: McPhail v. McPhail, 2018 ONSC 735, at para. 18.