An Ontario man has effectively been barred from his matrimonial home after a family law judge found that he was not taking the risks that COVID-19 posed to his children seriously enough. The case, heard March 31 by Justice Adriana Doyle of the family division of the Ottawa Superior Court of Justice, involved a couple that separated in August 2018 and subsequently implemented a parenting arrangement known as “nesting,” in which the adults rotated in and out of the house on an alternate-week basis, while the three children maintained their residence without disruption. Following the development of the COVID-19 pandemic, however, the parties suspended the nesting arrangement and both parents remained in the home with the children, aged 11, 13 and 17. Two of the children suffer from asthma. The mother is on long-term disability, having been diagnosed with myriad health issues including lupus, Sjorgren’s syndrome, fibromyalgia and asthma. Given her compromised immune system, on March 27, the mother’s physician directed her to “self-isolate as much as possible” and “to avoid possible virus exposure and avoid contact with other people” and “not to leave her home unless absolutely necessary.” According to the judge’s ruling, the mother developed significant concerns as to whether the father was adhering to appropriate COVID-19 protocols during several trips he took outside of the home. The mother’s concerns were heightened when the father refused to be forthright about his whereabouts and whether he had washed his hands. On an urgent basis, the mother sought an order for exclusive possession of the home, which would exclude the father from the premises and significantly impact the parenting arrangements on which they had originally agreed. Justice Doyle found the father’s conduct to be problematic and to warrant an order for exclusive possession in the mother’s favour. She also ordered that the father’s contact with the children be by electronic means only. “This order is made due to the father not taking the increased risk to the mother and children seriously,” Justice Doyle said, noting that it was “a temporary solution in these exceptional times.”

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 risk

Justice Adriana Doyle

“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 risk,” Justice Doyle stated, in arriving at the order. Justice Doyle went on to note that the father’s “attitude to the mother in not responding to her requests as to locations and to wash his hands, has placed her and the children at risk.” Justice Doyle also pointed out that the father “failed to provide sufficient details and explanations for his numerous absences from the matrimonial home nor has his girlfriend provided evidence that she has been following the COVID-19 measures.” What emerges from Justice Doyle’s decision is the paramount importance of parents taking all steps and precautions they can to protect the health of the children and each other. For separated parents, an integral component of those efforts is the sharing of information. Without candour, there is a real risk that a court may, out of an abundance of caution, take very harsh steps to protect the health and wellbeing of children. It is worth noting that in the absence of a pandemic, the threshold for a court to grant an order for exclusive possession is quite high. Such an order usually requires the prospect of violence or objectively intolerable living conditions. Justice Doyle seems to have had this in mind when she carefully pointed out that her order was being made “solely dealing with events in this family as a result of the COVID-19 pandemic.” Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto. ablack@torkinmanes.com