Henderson Heinrichs LLP

Interim Custody and Status Quo

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: May 18, 2011

Categorized: Custody and Access.

What happens on interim custody applications when there is no existing court order?  In granting an interim order for custody, the court is obliged to consider the status quo.  Preservation of the status quo pending trial is generally considered to be in the best interests of the child unless there is a compelling reason to change the existing custodial situation.  In Leung v. Leung, [1998] B.C.J. No. 2614 (BCCA), Justice McFarlane stated that in interim custody matters, the court should maintain the status quo in the absence of reasons to the contrary. In general, the party seeking to alter a child’s status quo must present evidence to show that the status quo is unsatisfactory and not in the best interests of the child and therefore should be changed.

In Prost v. Prost 1990 CanLII 907 (B.C.C.A.), [1990] 30 R.F.L. (3d) 80, the court held that the governing principle is that the status quo is to be preserved and there is to be “minimum change, uprooting, or disruption at the initial or interim stage prior to trial”.  This overarching principle is that the status quo should change only when there is very “cogent evidence” to suggest that the status quo should not be maintained.  The court went on to say that courts should be reluctant to change the status quo when children are happy in a stable and secure setting.  The need of young children to feel secure in every way cannot be overemphasized.

The courts have held that the status quo arrangement becomes increasingly more significant in determining what is in the best interests of a child the longer the arrangement has been in place. This is especially true where the status quo has created a stable and secure environment for a child and there is no evidence to suggest that the child is not doing well in that environment.

N. Ahluwalia
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