The applicant asserts that when she originally offered to try a week-about custodial arrangement back in July 2015, and later when it was actually implemented, it was on a without prejudice basis.[2] Consequently, she argues that the status quo is that the children are in her primary care. She relies upon the case of Button v. Konieczny and the cases cited therein, in that regard.[3] As far as I can tell, in all of those cases there was an actual without prejudice order, which was not the case herein. Additionally, with all respect to my colleague in that case, I am of the belief that some of his statements are simply too absolute. For example, he appears to agree with the proposition that “the only status quo that counts is the one that existed prior to the separation”.[4] But having said that, he also says that “it needs to be made clear that the decision to look at the pre-separation situation for the status quo does not mean that the court will ignore the current situation or what has transpired over the past five months.”[5]
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