Exclusive Possession of the Family Home in the Midst of a Pandemic

As the world continues to change as a result of the ongoing COVID-19 pandemic, divorce and separated parents have faced unique concerns and challenges associated with co-parenting and ongoing parenting arrangements. These difficult issues are further complicated by the frequent release of updated protocols and amendments to restrictions. 

In the early days of the COVID-19 pandemic there was very little guidance on how parents if, and how, the restrictions affected ongoing parenting arrangements.  Over the last 15 months, a body of case law has developed that provides direction to co-parents to help guide them in their parenting related decision making.  By and large, parents are encouraged to maintain their existing parenting schedules unless there is a specific reason to deviate from it.  If a parent believes that there are factors that make the existing parenting schedule no longer in a child’s best interests, that person should bring a court application to change the schedule rather than making unilateral changes. 

In a case from Ontario, Guerin v Guerin 2020 ONSC 2016, the parties had followed a nesting parenting arrangement prior to the onset of the COVID-19 pandemic. Prior to the pandemic, the parties followed a nesting parenting arrangement. In a nesting parenting arrangement, the parents rotate in and out of the matrimonial home on their respective parenting time, while the children remain in the home without any disruption (likes chicks in a nest).  

Shortly after the pandemic began, the parties decided that they would both remain in the matrimonial home on a full time basis.  However, shortly after that new arrangement began, the  mother brought an urgent application for exclusive use of the matrimonial home with her three children.  She raised concerns that the father was not taking the risks of COVID-19 seriously and was not adhering to the recommended protocols. The mother gave evidence that the father had taken several trips outside of the matrimonial home, and refused to be forthright about his whereabouts. This posed a threat to the health and wellbeing of both the children and the mother, as two of the children have asthma and the mother has numerous health conditions which cause her to be on long term disability. The mother produced a note from her family physician, which directed her to self-isolate, avoid contact with other people and to not leave her home unless absolutely necessary. The father disagreed with the mother’s allegations, claimed she was overreacting and advised that he did practice social distancing.

The Court granted the mother’s application and held that the father’s conduct, including his lack of response and providing misleading information, was problematic. In addition to granting the mother exclusive possession of the matrimonial home, the Court ordered that the father’s contact with the children be electronic only. In reaching this conclusion, the Court stated that the father was not taking the increased risk to both the mother and the children seriously. Generally the legal threshold for obtaining exclusive possession orders is high and these orders are usually reserved for circumstances that involve intolerable living conditions or violence.

However, in light of COVID-19 and the risks to the health and wellbeing of the children, the Court took a firm position when addressing this matter. This was a temporary solution in these exceptional times. The Court looked to the recent case of Ribeiro v. Wright 2020 ONSC 1829 (see our prior blog post discussing this case HERE) for guidance in assessing the mother’s application. Specifically, the Court considered the following:

a.  Specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols;

b. A parent responding to an urgent motion such as this will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives, etc.;

c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner; and

d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.

This case reinforces the importance of ensuring that parents communicate with each other, share information and take all the necessary precautions to protect the health of the children and each other.

Contact the family law lawyers at SVR Family Law if you are experiencing parenting issues due your co-parent’s failure or refusal to comply with public safety directives. We are here to help.