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Friday April 3, 2020

Immunocompromised Mother Granted Exclusive Possession of Matrimonial Home After Father Failed to Take COVID-19 Seriously

Posted in: COVID-19 Family Law

In Guerin v. Guerin, an Ontario decision released on March 31, the Ontario Superior Court of Justice dealt with an urgent issue regarding the mother’s exclusive possession of the matrimonial home. This case is an example of how a parent can be granted exclusive possession of the matrimonial home if the other is not taking added precautions to protect the other’s health during the COVID-19 pandemic.

The case was heard by telephone conference with the Court. The mother had a compromised immune system with multiple health issues, including Systemic Lupus Erythematosus, heart issues, Discoid Lupus, Sjogren’s syndrome, fibromyalgia and asthma.

The parties had a “nesting arrangement” where each parent would spend one week in the matrimonial home with the children. The parents would swap-out each week.  

The mother had concerns that the father was not taking COVID-19 protocols seriously or adhering to health officials’ directives. The father claimed that he had been following all protocols and that the mother was overreacting. Specifically, he said he had been following the government’s recommendations but would go for walks, drives, and had been in contact with his girlfriend, who was also practicing social distancing.

The judge granted the mother exclusive possession of the matrimonial home based on the following:

  1. A doctor’s letter confirming the mother’s serious health issues and risks associated with COVID-19;
  2. The children’s best interests to remain in their home with a parent;
  3. The father misleading the mother multiple times about his interactions outside of the home put undue stress on the mother and placed her health more at risk;
  4. Evidence that the father did not wash his hands when he returned to the home;
  5. The father was not following all measures deemed necessary given the mother’s health;
  6. A deterioration of the mother’s health would affect the children;
  7. Two of the children also have asthma;
  8. The father had alternative accommodations (girlfriend’s home and/or his parents’ home); and,
  9. The father failed to provide sufficient details and explanations for his numerous absences from the matrimonial home.

Specifically, the judge held that the mother will have “temporary exclusive possession of the matrimonial home and contact by the children with their father will be by electronic means. This is a temporary solution in these exceptional times. This order is made due to the father not taking the increased risk to the mother and children seriously.” [Emphasis added]

The father may bring a Motion with the Court no sooner than April 17, 2020 to have the decision reviewed. In his motion, the father may detail the measures he has taken to reduce the risk to the family and evidence that he has not had contact with others.

*This case is from Ontario. Therefore, it is not binding on Nova Scotian courts, but is likely persuasive; meaning these same logic and principles will likely apply in Nova Scotia.

If your co-parent is disregarding government policies on COVID-19, or to discuss your unique parenting arrangement amidst COVID-19, talk to a member of our Family Law team. Request your free 30-minute consultation via phone or virtual meeting platform (Skype, Zoom, FaceTime, etc.).  

This is legal information and is not intended to be legal advice.

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