Interim Custody and Status Quo
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
Posted: May 18th, 2011 under Custody and Access.
Tags: access, custody, interim, Leung, Prost, quo, status, status quo
What’s in a name?
The courts are not waiting for the legislature when it comes to the wording of orders. Changes proposed in the White Paper on Family Relations Act Reform have not yet been adopted as law; however, in keeping with the report’s recommendations, it is becoming more and more common for Judges and Masters to clarify that terms such as “Custody”, “Guardianship” and “Access” should be avoided and replaced with “Parenting Time” and “Parental Responsibilities”. This is progress. The words describing the relationship between parents and children are not merely reflective – they have a role in creating that relationship. Children have a right to language which not only accurately describes the circumstances, but which supports and fosters a healthy environment.
Posted: February 25th, 2011 under Family Court, Parenting, Procedure.
Tags: access, custody, Guardianship, Parenting Responsibilities, Parenting Time
To Skype or not to Skype?
There has recently been a flurry of cases referencing, examining or at least mentioning Skype in the context of access and mobility. As is becoming increasingly known, Skype is software which allows people to make voice and, by way of a webcam, video calls over the internet.
Inexpensive video conferencing has been available to the public through internet based applications for years now, but it seems to only be within the past year that the courts have taken real notice. It is a truism that video conferencing is not true personal contact. It is, however, at a higher plane than email or telephone communication, in that it provides child and parent with another level information, a level which heretofore has only been available in a face to face meeting.
In British Columbia, the majority of cases which reference video conferencing do so only as an option of communication proposed by the party seeking to move or as evidence of a party’s willingness to facilitate access: See Betz v. Joyce 2009 CarswellBC 2339 British Columbia Supreme Court, 2009 where at paragraph 57, the court acknowledges the willingness of the party to engage in Skype communications.
In Novlesky v. Novlesky 2009 CarswellBC 2638 British Columbia Supreme Court, 2009, at paragraph 86, the court stated that, “Mr. Lage, the children’s grandfather, is adamant about the importance of maintaining the children’s relationship with their father. I find he and the plaintiff are genuinely committed to supporting it. The children’s computers will be equipped with Skype, a program by which both visual and verbal communication occurs on the computer.”
In only one case to date, however, has the court made a clear and unambiguous statement regarding the limitations of the medium as an access method. In C. (E.L.) v. B. (E.S.) 2009 CarswellBC 3066 British Columbia Supreme Court, 2009, the court said at paragraph 153: “If the plaintiff moves with the children there is an emotional loss which will be suffered by them. They are only ages 7 and 4. They will grow up with limited physical and emotional affection from their father. Skype is not enough. They will not be able to participate in activities or events with their father.”
Clearly, the courts are aware of what Skype is not. In Gauvin v. Gauvin 2009 CarswellBC 2520 British Columbia Supreme Court, 2009, we see the beginnings of the courts exploration of what Skype actually is. In that case at paragraph 7, Mme Justice Satanove stated that, “The plaintiff also promises to acquire Skype and to pay for regular long-distance telephone access. Obviously, electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes.”
Here, the service is equated with telephone access. They are both “electronic communication” and, unfortunately, no comment is made differentiating the benefits the court sees. Would the inability to access video conferencing have negatively affected the Plaintiff’s case?
As video conferencing technology progresses and becomes cheaper, moving from computers to smartphones, and with the emergence of 3D video, it will be interesting to see how the court positions this medium within the context of access in general.
Posted: June 30th, 2010 under Custody and Access, Mobility.
Tags: access, children, custody, Divorce, Mobility, separation, skype, video, video conference, web cam, webcam
