New COVID-19 family law decision

New COVID-19 family law decision

On March 20, Justice Diamond issued a decision in a case (Jackman v Doyle, not yet reported) in which the mother sought the return of the children from the father’s care.

The triage judge, Justice Shore had, the day before, deemed that the unlawful withholding of the children, given the COVID-19 situation, met the urgency requirement currently in place. Justice Diamond then held a telephone hearing with the parties. He concurred with Justice Shore’s determination that the mother’s motion was “presumptively urgent,” warranting “interim relief from the courts.”

The parties have two children, who are three and five years old. They separated several months ago, in July 2019, but resided together until December 2019. There is no formal parenting agreement in place, but the children had consistently lived with the mother, who has always been their primary caregiver, since the date of separation. When the father spent time with them it was at the mother’s property, with the children’s nanny present.

This changed when the father told the mother he planned to take the children to his home for the March break. The mother objected, and her lawyer wrote to the father’s lawyer to indicate this. In response, the father fired his lawyer, went to the mother’s home and took the children without her consent.

The mother’s evidence sets out what the decision calls a “volatile” relationship, including both physical and electronic monitoring of her as well as financial extortion by the father.

The mother attempted to have the father return the children to her, but was unsuccessful. She had a number of concerns specific to the present public health situation. The children became ill and developed a fever while with the father, but he declined to seek medical advice. Despite this, he took them to public places and to visit his aged mother. Justice Diamond shared her concerns: “the applicant is understandably concerned for the children’s well-being.”

In making his order that the children be returned to the mother, Justice Diamond wrote:

“Until the events of this past week, the children’s status quo was found and maintained at the applicant’s property. The children’s lives were at the applicant’s property both before and after separation. . . . I find that the children’s status quo was unilaterally altered by the respondent’s actions and it is in the children’s best interests to make an interim order returning the children to the applicant’s care and control at her property. In terms of access, I make no order at this time and the parties are free to negotiate that issue. If they cannot reach an agreement, the issue can be raised at the next telephone hearing in one week’s time.”

The order set out a number of provisions, including one that “if necessary,” the mother could enlist the assistance of the police, and listed three police forces — Toronto Regional Police, OPP and RCMP.

Another provision noted that the endorsement itself is an order of the court that is “enforceable by law from the moment it is released.”

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