Since the outbreak of COVID-19 we have used our blog to share news on how the courts are operating as well as cases that illustrate these changes. The decision we will discuss today is from the Ontario Superior Court of Justice and serves as a good example of how the courts are treating urgent matters within the context of COVID-19. Like last week’s blog, the court considers one of the parent’s actions within the context of COVID-19 in helping to reach a decision.

Urgent hearing…by telephone

The judgment starts off stating that the hearing was conducted over the telephone, something unusual during normal times but standard today as the courts are largely shuttered following government directives. The court had determined that the matter, which related to the alleged unlawful withholding of two children fit the “urgency requirement” the courts are working under.

Another interesting statement made by the court relating to the urgency of the matter is that the respondent father did not have the opportunity to deliver a written response to the mother’s allegations. Instead, the judge listened to “his side of the story” over the telephone.

The relationship

The parties were never married but began living together in April 2012. They had two children together before separating in July 2019. However, even after the separation, the father lived in a rental property owned by the mother. She said that during this time the father would closely monitor her both physically and through her phone, also alleging that he had extorted money from her before with the promise that he would move out of the apartment in exchange for money. The mother also said she has always been the primary caregiver for the couple’s children.

Since the couple separated, the children have resided with the mother with the father having interim access to them in the presence of their nanny. This was agreed to by the parents.

Taking the children without consent

The mother alleged that on the week of March 13, 2020, the father returned from a trip to Brazil and told the mother he was going to take the children to his rental property for the week of March 15, which would have been their second week of spring break.

The mother had told the court that the children had fallen ill while in the care of the father. He confirmed that the children did have a fever. Despite this and the outbreak of COVID-19, he continued to take the children to public places.

The court’s decision

The court started off by noting it was in the children’s best interests to maintain the status quo and shield them from the impact of family litigation. Until the father took the children, that status quo meant they lived with the mother. The parents’ original agreed via text message that they would split access 50/50, but never actually put such an arrangement in place. The father said the reason he had not followed through on that arrangement was that the rental property wasn’t ready yet and that he was mourning the loss of a family pet. The court noted that his answer “seemed to lack an air of reality…”

The court found that the children’s status quo was unilaterally altered by the father’s actions and ordered them returned to the mother.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Lex Arbesman provides clients with clear, practical advice so that they can make informed decisions about their parental rights. Contact the firm online or at 416-481-5604 to book a consultation.

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