While Ontario begins to roll out its plan to re-open, the courts consider to hear only urgent items as it relates to family law. Unfortunately, urgent situations to continue to arise, and a recent decision from the Ontario Superior Court of Justice highlights what constitutes urgent as well as how COVID-19 impacts the way courts expect people to behave.

Assault charge and separation

The parties were married in early 1999 and remained so until early 2020, after 21 years of marriage. They had three children together during their marriage, two of who are in university and one of whom is 13-years-old. The mother alleges that the father was physically, emotionally, and financially abusive towards her throughout the marriage. At the time they separated, the father was criminally charged with assault and was ordered to stay out of the family home.

The home the couple lived in is owned by the father’s father (“BF”). Following the alleged assault, BF and the father returned to the home and asked the mother to take him back. When she refused, BF told her he was raising their rent to $2,200 from $1,250. She was not able to pay this because she said the father controlled their finances.

A second assault was alleged to have occurred in February. After fleeing the home during the assault, the mother has been unable to return and was living with a friend when she brought the motion to have exclusive possession of the matrimonial home (which the father can’t live in due to his bail conditions) as well as custody of their youngest child.

The father contends that a tenant who used to live in the basement of the home is now residing in the entire home, and that the mother’s decision to live with friends has not been something that can accommodate visits with the child during COVID-19.

The matrimonial home and custody of the youngest child

The court labeled the father and BF’s attempts to keep the mother out of the home as a “scheme” designed with the intent to put the mother “in a terrible predicament for (the father and BF’s) tactical advantage in the litigation.” The court was presented with no evidence to demonstrate that the tenant from the basement had moved into the rest of the home. There was also no evidence about what happened to the parties’ household possessions.

The mother was granted exclusive possession of the home.

The court also found that the mother and the child have a close and loving relationship and was worried that the father might be trying to alienate the child from the mother. The court also found that the father did not seem able to act responsibly as a parent to the youngest child or their older children, the later of whom he had involved in the dispute through the production of affidavits. The court determined that the mother would live primarily with the mother with scheduled visits to the father’s home.

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