We are continuing to update our readers on how Ontario’s family courts are responding to COVID-19. The virus’ spread as well as the response to it from all levels of government has had a profound impact on every area of life. Family law is no exception to this. In today’s blog, we would like to look at how individual responses to COVID-19 may impact a parent’s right to have access to their children. A just-released decision from the Ontario Superior Court of Justice serves as an excellent illustration of this.
An urgent motion brought by mother
The motion was brought by the mother, seeking exclusive possession of the matrimonial home in Ottawa. She also sought an order that the father’s access to their children be limited to video chat and the telephone.
The parties began living together in 1999 and were married in 2003. They separated in 2018 and have three children. Since their separation, the parents maintained a “nesting arrangement” where they would take turns loving in the home with their three children on an alternate week basis. However, they decided to both live in the home since March 13, 2020 as they wait for COVID-19 response measures to allow them to continue their long-held arrangement.
The mother’s concern
The mother became concerned that the father was not respecting the COVID-19 protocol put in place by the government. She is on long-term disability and has a compromised immune system. He doctor has advised her to self-isolate as much as possible.
The mother said the father had been leaving the home on numerous occasions without providing her with an explanation. She said she received a message from the father’s girlfriend that he had been with her on a day when the father told her he had simply been out for a drive. She also said the father refused to say whether he had washed his hands or not.
The father, meanwhile, said the mother was over-reacting, stating he had been following the government’s COVID-19 protocol.
The court’s analysis
The court decided to grant the mother exclusive possession of the matrimonial home on an interim basis and to restrict the father’s access during that time. The court cited a letter from the mother’s doctor which said she should avoid contact with people outside her home and only leave her home if absolutely necessary. The court found it would be in the children’s best interests to stay home with a parent, and the mother was the clear candidate to remain in the home. The court was also critical of the father’s behaviour, writing, “Although the father is not obliged to provide all details of his whereabouts, his lack of response and at times, misleading information, of where he has been places undue stress on the mother and places her health at rise.”
The father was invited to bring the motion back to the courts after April 17. We are clearly still not in a place where physical distancing restrictions have been eased, but we will be sure to let you know how the case develops.