Status Quo Matters: Lessons from Churchill v. Elliot on Interim Parenting Motions 

Justice Pazaratz’s endorsement in Churchill v. Elliot and Ward, 2024 ONSC 1907 offers a detailed roadmap for navigating interim parenting motions, particularly when a trial looms near. This decision underscores the judiciary’s reluctance to upend established arrangements absent compelling evidence, providing critical guidance for family law practitioners in Ontario on timing, evidence, and strategy. 

Case Overview 

In Churchill v. Elliot, the mother sought to overhaul a two-year interim parenting arrangement for her eight-year-old son, N, just three months before a scheduled 10-day trial. N had resided primarily with his father since March 2022, following the mother’s request for temporary care amid her mental health challenges. She later demanded his return, but the father refused, citing ongoing concerns. The resulting arrangement—N living with the father and seeing the mother three out of four weekends—evolved through multiple “without prejudice” consent orders. 

The mother’s motion requested N’s immediate transfer to her primary care and a change in his school, relying partly on an OCL report favoring her position. The father opposed, defending the stability of the current setup. Justice Pazaratz dismissed the motion, prioritizing N’s best interests and the impending trial’s ability to resolve disputed issues comprehensively. 

Key Takeaways for Practitioners 

1. The Fading Power of “Without Prejudice”

Justice Pazaratz opens with a striking observation: “‘Without prejudice’. In parenting orders you can only say it so many times – and for so many months (years?) – before it starts to lose its impact.” He cautions that prolonged use of “without prejudice” orders can solidify a de facto status quo, as “the child’s accumulating experiences, routines and relationships” take root. 

Practice Tips: 

• Advise clients that extended “without prejudice” arrangements may gain judicial weight over time. 

• Recognize that repeated interim orders can shift the focus from flexibility to stability, aligning with the child’s lived reality. 

• Frame arguments around the child’s perspective, not just the legal label, as courts prioritize continuity after prolonged periods. 

2. High Bar for Disrupting Status Quo Near Trial

The decision reaffirms that altering a longstanding status quo on the cusp of trial requires exceptional justification. Justice Pazaratz notes, “the court still requires compelling reasons to disrupt a successful two-year status quo on the eve of trial,” even without mandating a formal “material change in circumstances.” His review of caselaw emphasizes that interim orders are temporary “band-aid” solutions, and evidence must “clearly and unequivocally” show the status quo harms the child’s best interests to warrant change. 

Practice Tips: 

• Assess the timing of motions critically—proximity to trial heightens the threshold for success. 

• Present concrete, tested evidence of immediate need, not speculative benefits, to overcome the stability presumption. 

• Highlight how proposed changes align with statutory best interests factors under s. 24 of the Children’s Law Reform Act. 

3. Cautious Use of OCL Reports on Motions

Justice Pazaratz advises restraint in leveraging OCL reports at the interim stage, describing them as “only one piece of evidence” meant for trial. He warns against treating their arrival as a “strategic opportunity to secure a more favourable status quo,” given their untested nature and the risk of reversal after cross-examination. 

Practice Tips: 

• Use OCL reports selectively, focusing on undisputed facts or observations rather than contested recommendations. 

• Anticipate challenges to reliability—ensure supporting evidence corroborates the report’s key points. 

• Advise clients that courts prioritize a holistic trial analysis over premature reliance on professional opinions. 

Practical Implications 

Churchill v. Elliot signals that interim motions close to trial are a tough sell unless the child’s immediate well-being is demonstrably at risk. Practitioners should guide clients to weigh: 

• Timing: Does the trial’s proximity render the motion redundant? 

• Evidence Strength: Can you show urgent need with clear, credible proof? 

• Disruption Scale: How significant—and potentially destabilizing—are the proposed changes? 

• Strategic Value: Is this a genuine necessity or a bid for leverage? 

Focus advocacy on the child’s current stability and best interests, steering clear of untested allegations or over-reliance on reports like the OCL’s. With a 10-day trial and 46 witnesses on the horizon, Justice Pazaratz’s deference to a full hearing underscores the limits of interim relief in complex cases. 

Conclusion 

Churchill v. Elliot is a paradigm in balancing stability and flexibility in interim parenting disputes. It reminds practitioners that courts guard the status quo jealously when trial is near and evidence remains untested, anchoring decisions in the child’s best interests under s. 24 of the CLRA. For Ontario family lawyers, this case sharpens the lens on when—and how—to push for change. 

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.