Despite the suspension of most court matters due to the COVID-19 pandemic, an Ontario court recently heard a mother’s motion on an urgent matter. The mother, who was self-isolating with her children and their father, requested exclusive possession of their home, claiming that the father was compromising her health and that of their children by not following health and safety directives.
The parents began living together in 1999, married in 2003 and separated in August 2018. They have three children, aged 11, 13 and 17.
Since the fall of 2018, the parents were in a “nesting arrangement” whereby one parent remained in the matrimonial home with the three children on an alternate week basis.
Since early March 2020, due to the COVID-19 pandemic, the parents had stayed together in the matrimonial home.
The mother is on long-term disability as she was diagnosed with a form of lupus in 2009. She also has heart issues, Sjorgren’s syndrome, fibromyalgia and asthma. She is connected to a heart monitor and has a compromised immune system. Her doctor stated that, as a result of the COVID-19 pandemic, she needed to self-isolate as much as possible to avoid possible virus exposure, avoid contact with other people and not leave her home unless absolutely necessary. Additionally, two of their children also have asthma.
The mother became concerned that the father was leaving the house and coming and going without regard to the COVID-19 protocol and health officials’ directives. For instance, he would leave the house without explanation and, on at least one occasion, had been to visit his girlfriend even though he had told the mother he was simply going for a drive.
As a result, the mother brought a motion for an order for exclusive possession of the matrimonial home and that contact between the father and the children be only by video chat and/or phone access.
The father indicated that he had been following the COVID-19 protocol. The father submitted that the mother was over-reacting.
Section 24 of the Family Law Act grants a court the power to make an order for exclusive possession of the matrimonial home. It sets out the criteria that the court must consider, which include the best interests of the children affected and the availability of other suitable and affordable accommodation. The best interests considerations include the possible disruptive effects on the child of a move to other accommodation and the child’s views and preferences, if they can be reasonably ascertained.
After reviewing the evidence, the court granted the mother’s motion, finding that the father had not been following public health and safety protocols and was potentially compromising the health of the mother and children while living in the same home. The court stated:
“This is a temporary solution in these exceptional times. This order is made due to the father not taking the increased risk to the mother and children seriously.”
As a result, the court granted the mother interim exclusive possession of the matrimonial home. It also ordered that the father’s contact with the children be via video-chat or other electronic means. It stated that the father would be entitled to return the matter to court on a date after April 17, 2020 for a review of the order.
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