Factual Background

In this case, the separated parties have three children together. Starting in 2018, the parties had a nesting arrangement where one parent remained with the children in the matrimonial home on an alternate week basis. Since early March 2020 after the COVID-19 pandemic, they all stayed together in the matrimonial home.

According to the mother’s evidence, the father has been leaving the house without regard for current COVID-19 protocols and that he would not provide explanations for where he is going, nor would he answer her questions regarding the implementation of cleaning and handwashing measures at the matrimonial home. Moreover, the father visited his current girlfriend’s home and went on other outings during the pandemic and did not disclose this information to the mother.

As the mother is on long-term disability and is at a heightened risk of contracting the coronavirus due to pre-existing health conditions, she had to adopt more stringent protective measures. On her doctor’s recommendations, she is to self-isolate as much as possible and avoid coming into contact with members of the community. In light of the father’s nonchalant attitude towards the ongoing pandemic, the mother brought an urgent motion seeking exclusive possession of the matrimonial home and that contact between the father and the children take place only via telephone or video-conferencing. The mother suggests that the father can live with his current girlfriend or his parents on a temporary basis while she has exclusive possession of the home.

In turn, the father claims to have observed all relevant protective measures and argues that the mother is “over-reacting”.

Legal Analysis

Section 24 of the Family Law Act enables the Court to make an order for the exclusive possession of the matrimonial home. Among other considerations, subsection 24(3) mandates that the Court take into account the availability of other suitable and affordable accommodations for the parties, and the best interests of the children affected, which include possible disruptive effects on the child and the child’s views and preferences, if they can be reasonably ascertained. In this case, the father has reasonable alternate accommodations which he can move to and this was therefore not an issue.

While the Divorce Act encourages maximum contact between children and their parents, the facts of this case warrants an order for exclusive possession and limited access between the children and the father. The Court found that it was in the children’s best interests to remain in the matrimonial home with the mother. Although the father is not obliged to provide all details of his whereabouts, his lack of response and sometimes misleading information has put undue stress on the mother and exposed the family to unnecessary health risks. Not only does two of the children have asthma which might make them more vulnerable to the virus, a deterioration of the mother’s health would also affect the children’s safety and wellbeing by impacting her ability to care for them.

Given all of these considerations, the mother was granted exclusive possession of the matrimonial home on a temporary basis and contact between the children and the father was limited to electronic means.

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