The current health pandemic has created obstacles for everyone in Canada. Families across the country have had to find ways to structure their living arrangements around the current requirement to stay at home as much as possible and avoid contact with others who are not a part of their households. For parents with shared parenting arrangements, navigating the current circumstances has presented a number of unique challenges.

Some families have chosen to suspend access visits during this time in order to avoid unnecessary health risks. Some parents are visiting children and implementing strict social distancing precautions, such as communicating through windows and doors or switching to video chat options instead of in-person visits. Some families have even decided to quarantine together so that both parents can remain in constant contact with their children until the restrictions are lifted.

For one family in Ontario, this was the case. However, one parent’s failure to strictly observe the social distancing requirement and other regulations while self-isolating with their family ended up costing them access to their children for the time being.

Self-Isolating Together, for the Children

In the case at hand, the parents had separated in 2018 and had implemented a unique approach to co-parenting referred to as “nesting”. This is when the children remain in the matrimonial home and the parents alternate weeks in the home with the children, rather than moving the children back and forth. Once the self-isolation restrictions came into effect, the parents decided that the family would all stay in the home together so that neither parent was forced to miss out on time with their three children, ages 11, 13 and 17.

Two of the children, as well as the mother, are immunocompromised. Two of the children have asthma, and the mother has a number of health issues including lupus, Sjorgren’s syndrome, fibromyalgia and asthma. The mother is on long-term disability owing to her health issues and was advised by her physician to remain at home at all times during the pandemic unless absolutely necessary to leave.

The father, who has a new partner, was leaving the home on occasion to see his girlfriend and presumably to run errands since the mother was unable to do so. The mother became concerned the father wasn’t adhering to protocols put in place regarding COVID-19 while he was out, and after returning home. The mother claimed he had been less than forthright about his whereabouts when he returned home, or even whether he had washed his hands upon his return. The father disputed her claims, insisting he had been following all regulations and that his girlfriend, who he had been spending time with, had also been practicing social distancing.

The Mother Seeks an Urgent Order

The mother sought an urgent order for exclusive possession of the matrimonial home out of concern for her health and the health of her children. The judge reviewed the evidence of both parties and arrived at the conclusion that the father’s behaviour and lack of transparency about his whereabouts were of significant concern. He was leaving the home regularly, sometimes multiple times in a day. He had also not been truthful on at least one occasion when he said he had been driving around alone, as his girlfriend later confirmed she had been with him. His behaviour was putting the health of the mother and his children at risk.

Acknowledging that this was a temporary remedy in an extraordinary time, the judge ordered the father to leave the home, granting the mother exclusive possession for the interim. The father was further ordered to maintain communication with his children exclusively via electronic means. The father will be permitted to bring an application for a variation in the order after three weeks’ time, providing he can detail the measures he’s taken to limit risk to his family if he chooses to.

Compromise and Honesty are Keys to Making The Situation Work

This case demonstrates the need for parents who share access to their children to maintain open and honest communication, for the sake of their children. While it would no doubt be a challenge for a separated or divorced couple to self-isolate together in order to maintain contact with their children, this type of arrangement requires effort on both sides. We are living in very unusual times at the moment, and this case shows that courts will not hesitate to implement harsh orders when necessary to ensure the health and well-being of both children and parents.

The family law lawyers at Mincher Koeman are exceptionally experienced with respect to parenting plans and child access arrangements following the breakdown of a relationship. We will work with you to ensure that you receive a support award that accurately reflects the true financial positions of the parties. Contact our office today by calling us at 403-910-3000 or contact us online.

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