During the COVID-19 pandemic, courts have decided many custody and access issues between currently separated or divorced parents. Recently, an Ontario court faced a custody and access case involving parents who had separated during the pandemic, which it heard on an urgent basis.

What Happened?

The parentswere in a relationship for approximately six years. They started living together in 2018 and never married. Their only son was born in 2019 and was five months old.

On March 27, 2020, the parents separated. At the time, they were living together in Woodbridge. Following the separation, the mother and child moved to Toronto.

The father had some parenting time with the son immediately after the parents separated. The parties had agreed to an overnight visit at the father’s home in Woodbridge from March 28 to March 29, 2020. The father returned the son to the mother in Toronto on March 29th.

At the mother’s invitation, the father returned to the mother’s home on March 30, 2020 for a further visit with the son. However, an incident occurred between the parties on that day while the father was visiting with the child. The mother’s sister called the police. The police arrived and the father was asked to leave the apartment without the son, to which he complied.

The father did not see the son again following the incident on March 30th. 

The father sought leave to bring an urgent motion for an order that the son be immediately returned to his primary residence in Woodbridge, or in the alternative, an order for an equal parenting schedule.

The mother, in response, brought a motion seeking an order that the son’s primary residence remain with her in Toronto, and an order for specified access to the father.

Parties’ Positions

The father claimed that the mother left their home without notice and had “absconded with the child”, “denying [him] any parenting time with the child”, “refusing to return the child to his primary residence” and “threatening parental alienation.”

The father claimed that he had attempted to negotiate parenting time with the mother and she had refused to negotiate any such time. He believed that she was “crossing the line to outright parental alienation.”

According to the father, the mother left with the child in the midst of the pandemic and she was using the pandemic and the court closures to restrict his interactions with the child.

Finally, the father claimed that the mother had drug and alcohol dependency issues.

It was the mother’s position that it was in the son’s best interests to continue to be in her primary care, as he had been since birth, and that the father should have regular parenting time with the child consistent with his age and stage of development.

The mother denied absconding with the child. The mother stated that she had advised the father that she was leaving the home with the child. She claimed that the father knew that she was leaving and that they had been having difficulties in their relationship. 

The mother further denied the father’s claims that she had refused all parenting time with the child.

Finally, the mother claimed that the father was controlling and critical and had brought the motion under the guise of urgency because she would not submit to the parenting schedule that he sought to impose. She further submitted that the claims that she was an unfit parent who abused alcohol and drugs were baseless.

Decision

The court had allowed the motion to proceed on an urgent basis based on the father’s serious allegations.

However, after reviewing the parents conflicting affidavits, the court had significant concerns about the father’s evidence. 

First, the court found that the father’s statement that the mother had “absconded” with the child and left “without notice” was completely inaccurate and misleading. In fact, the court found that the father had implicitly consented to or acquiesced to the mother and infant son leaving his home and returning to Toronto to reside with the child after the parents separated. The court stated:

“It is very concerning that the father would repeatedly describe the mother as “absconding with the child”  and “denying him any parenting time” and “threatening parental alienation” in support of his request for an urgent motion. 

The father may have changed his mind after the parties separated and the mother returned to Toronto with [the son]. However, it is clear upon a complete review of the evidentiary record and upon hearing submissions that there is no evidence to support the father’s very serious allegations that the mother absconded with the child.”

Additionally, the court found that the father’s evidence that the mother had been “denying him any parenting time with the child” was also not credible. Instead the court found:

“In carefully reviewing all of the evidence, and considering the submissions made on behalf of the father, the court finds that the father is only prepared to have parenting time with the child on his terms. The father’s approach is not child-focused, but rather focused on his “rights” as a father.”  

Finally, the court rejected the father’s allegations of drug and alcohol issues, stating:

“The court finds this evidence highly suspect. If the father truly believes that the mother is unfit and drug and alcohol dependent, then one wonders why he believes that an equal, shared parenting arrangement is in the child’s best interests.”

As a result, the court ordered that the child’s primary residence would remain with the mother in Toronto and gave the father access rights.

Get Advice 

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.