As Ontario enters its third state of emergency in less than 13 months and imposes another stay-at-home order, many Ontarians continue to follow the recommended safety protocols while the  adherence by others to public health measures grow lax. For separated spouses who continue to reside together following the breakdown of their marriage, the stay-at-home orders have been particularly challenging. This situation is exacerbated when ex-partners who are living together and/or co-parenting hold conflicting views on the pandemic and the related safety measures.

In Guerin v. Guerin, the parties were following a “nesting arrangement” whereby their three children lived in the matrimonial home on a full-time basis, and the parents spent alternate weeks at the matrimonial home with the children. In March 2020, in response to news of the development of the pandemic, the parents agreed to reside together in the matrimonial home with the children. Shortly thereafter, the mother, concerned about the father’s frequent comings and goings in and out of the matrimonial home and apparent lack of regard to the COVID-19 protocols, brought an urgent motion seeking inter alia exclusive possession of the matrimonial home and an Order limiting the father’s contact with the children to video chat and/or phone access.

The mother, a former police officer on long term disability, had been diagnosed with various ailments. She is immunocompromised and presented the court with a letter from her physician confirming that she needed  her patient to avoid possible virus exposure. The mother, out of concern for her health and the health of her children, two of whom have mild asthma, meticulously followed all safety measures. The father maintained that he was following all government recommendations and that the mother was simply over-reacting.

Exclusive Possession of the Matrimonial Home

Upon the breakdown of a marriage and prior to divorce, both spouses are entitled to occupy the matrimonial home regardless of whether or not they are registered on title to the property. Under section 24 of the Family Law Act, either spouse may seek an Order for exclusive possession of the matrimonial home. In determining whether to grant a spouse exclusive possession of the matrimonial home, the court will consider the factors set out in section 24(3) of the Family Law Act including whether such an Order would be in the best interests of the child.

The Court in Guerin granted the mother exclusive possession of the matrimonial home, effectively barring the father from attending the property.  In making this decision, Justice Doyle considered whether the mother had satisfied the onus set out by the court in Ribeiro v. Wright.  Justice Pazaratz in Ribeiro set out that:

1. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
2. The parent responding to such an urgent motion 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.
3. 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.
4. 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 is a very good time for both custodial and access parents to spend time with their child at home.

The content of this article is intended to provide general information only.

By: Tharmini Kuhathasan