Status quo not a ‘silver bullet’ in best interests of the child assessment: PEI Supreme Court

Each parent made serious allegations against the other, including a claim of sexual abuse

Status quo not a ‘silver bullet’ in best interests of the child assessment: PEI Supreme Court

The PEI Supreme Court has ruled in a recent parenting time dispute that the status quo does not have a "silver bullet" status in the assessment of the best interests of the child.

In AMH v. CAHH, 2023 PESC 35, the parties brought interim motions concerning parenting time over their two children, aged eight and six. The parties were married in 2008 and separated in 2021. They are both retired from military occupations, and they both alleged that they were the primary caregivers of the children prior to separation.

Each parent has made serious allegations against the other. The mother has claimed that the father has sexually abused the children and has been grooming them. She also alleged family violence in the form of the father's demands for unusual sexual activity. Meanwhile, the father alleged that the mother had engaged in parental alienation.

However, the PEI Supreme Court did not find any admissible evidence to establish that the father has been physically, emotionally, or sexually abusive to the children, or that the mother has engaged in conscious parental alienation. Each parent sought to demonstrate poor parenting on the part of the other due to mental health challenges. Still, no expert evidence was properly put before the court to establish a medical diagnosis or professional assessment of either of the parties.

The court noted that the mother had been the children's primary caregiver and that a status quo has been established because she has continued to do most of the parenting since separation. She argued that the serious allegations against her required a trial and that the status quo regarding parenting time should continue until then.

The court's authority to order parenting time is derived from s. 16.1 of the Divorce Act, requiring the court to consider only the children's best interests. The court emphasized that this is an explicit legislative direction.

In considering the children's best interests, the court said it must give primary consideration to their "physical, emotional and psychological safety, security and well being." Further, the court is required to consider a broad range of factors in determining the children's best interests, including the child's needs, the nature and strength of their relationship with each parent, and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse, among other factors. The "maximum contact" principle also guides the court.

The court explained that in applying the various factors to be considered, it must attribute appropriate weight to the multiple criteria commensurate with the circumstances disclosed by the evidence before the court. After carefully reviewing the evidence, the court found that the children would benefit most from approximately equal time with both parents. Furthermore, the court said the children love their parents unconditionally and unequivocally, and the parents more than fully reciprocate that love.

The court also found no evidence that either parent cannot care for or meet the needs of the children. Additionally, family violence has not been established, and consequently, it is not a live issue in the proceedings.

The court found that virtually every factor, with the possible exceptions of considerations related to the status quo, points to increasing the father's parenting time to approximately equal to that of the mother. However, the court said that the status quo does not have a "silver bullet" status in the assessment of the best interests of the children.

The court, citing case law, explained that the notion of status quo must be considered in all circumstances and contexts, including a status quo that may have been created because of the unilateral action by a parent, which is not to be condoned. The court concluded that a determination effectively based on the status quo alone would be both excessively formalistic and insensitive to context.

Accordingly, the court ordered the immediate institution of a process to increase the father's parenting time to approximately equal to that of the mother, which is consistent with the children's best interests.

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