In serious circumstances, a parent can bring an urgent motion when there is an immediate danger to them or their children. In such a situation, detriment or harm could result without judicial intervention. The COVID-19 pandemic is a challenging time for many families, and urgent motions may be necessary during these exceptional times. In Guerin v Guerin, 2020 ONSC 2016, the Mother brought an urgent motion for exclusive possession of the matrimonial home, and for contact between the Father and the children to be only through phone and video calls.
Guerin v Guerin
The Mother and Father were separated and had a nesting agreement whereby one party remained in the matrimonial home with their three children on an alternate week basis. However, due to the pandemic, the parties stayed together in the matrimonial home. Two of the three children had asthma. The Mother was also on long-term disability and had a number of health conditions that resulted in her being immunocompromised and susceptible to COVID-19. Her physician had instructed that she self-isolate as much as possible to avoid possible exposure to the virus, and that she only leave her home when absolutely necessary.
The Mother brought the motion because she was concerned that the Father was leaving and going without regard for COVID-19 protocols. The Mother was also concerned that the Father was not adhering to the health officials’ directives as they relate to persons in vulnerable categories. The Court ruled in favour of the Mother and ordered that the Mother have exclusive possession of the matrimonial home.
The Best Interest of the Children
The Court found that in this particular circumstance, the Mother was extremely vulnerable to the pandemic. Given her vulnerable immune system, she would be at a greater risk of contracting an infectious disease and experiencing complications. The Father was found to be leaving and entering the home continuously without advising the family, which was deemed to be risky behaviour. Furthermore, he would not wash his hands upon his return to the home.
Despite it not being required that the Father completely self-isolate, the circumstances at hand were not business as usual. The Father was found to not be following all of the measures deemed necessary given the Mother’s health, such as handwashing. The Court determined that a deterioration of the Mother’s health caused by the Father’s risky behaviour would negatively affect the children. The Father’s behaviour also placed the children with asthma at risk.
The Divorce Act states that parenting time with the children is dictated by what is in their best interest. Section 24 of the Family Law Act grants the Court power to make an order for exclusive possession of the matrimonial home, and subsection (3) includes considerations such as the best interests of the children affected. Here, the Mother was granted temporary exclusive possession of the matrimonial home, and contact by the children with their Father was ordered to be virtual. It was determined that allowing the Father to continue residing in the matrimonial home posed a risk to both the children and the Mother. An increased risk to the children of contracting COVID-19, and an increased risk of their Mother’s health further deteriorating if she contracted COVID-19, was not in the best interest of the children.
Parents Must Adhere to COVID-19 Protocols
This case demonstrates how a parent’s potential risky conduct can have serious repercussions when it places the children or others involved in a precarious position. This case also demonstrates that conduct that puts the health of others at risk for COVID-19 is determined on a case-by-case basis. The pandemic has created extreme uncertainty, and every family will have to adapt in a way that is unique to their needs. Some families may require that all parties adhere to stricter protocols because of immunocompromised members, and if non-compliance with such protocols are found, serious legal ramifications may result. If an increased risk to a parent or the children is not taken seriously, the Court will make a finding that is in the best interest of the children and that aids in accommodating any unique family needs.
At Nussbaum Law, the health and safety of our clients and their children is of utmost importance. We strive to protect our clients and understand that each family will have unique needs during the pandemic. If you have concerns that you or your children’s health is being put at risk during the pandemic because of a parent’s reckless behaviour, please contact one of our experienced lawyers for assistance.