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COVID-19 has not been easy for parents of young children. For parents who are recently divorced or separated, a stressful time can be all the more difficult with the additional health concerns that the pandemic has introduced. A recent decision from the Ontario Court of Justice illustrates some of these challenges.

An urgent motion

The parties were living together with their four-month-old child on March 27, 2020 when the mother left the home. The father claimed the mother absconded with the child and was unlawfully retaining him.

The father claimed he was not granted access to the child with the exception of a visit at the mother’s new residence on March 20, 2020. However, this visit ended with the mother’s sister calling the police and the father having to leave. The father had not seen the child since the incident, and the parties disagreed about what occurred during the March 30 visit. The father asked the court to grant him custody of the child, or in the alternative, arrive at a parenting schedule.

The father said the mother has “a dependency of over the counter medication and alcohol” and that he was worried she was mixing alcohol with medication while caring for the child.

The mother’s position

The mother argued that it was in the child’s best interests to continue to be in her primary care, with the father having access three days per week. She said she had been the primary caregiver to the child since his birth, and that the father became resentful of the child and didn’t help when he came home from work.

She denied absconding with the child, and said she told the father she was leaving to stay with her sister. She also said she offered the father parenting time with the child, including staying in the spare room of the home she shared with her sister. She said the motion was not urgent, and that the father brought it as part of a controlling and critical personality.

The court’s analysis

The court determined the matter was urgent. After discovering the father knew about the mother’s plans to leave with the child, the father’s statement that the mother had absconded with him was not true. The court also questioned some of the other evidence brought forward by the father. The court accepted that the father had been offered parenting time with the child, and that the father had been offered the opportunity to move into the condo where the mother and child were staying. The father chose not to accept the invitation.

The court found the father was only ready to have parenting time if it was done on his terms, and thus his approach was not child-focused, but instead focused on his rights as a father.

As a result, the court agreed that the mother would be the primary caregiver of the child, but that a parenting schedule would be arranged.

If you have questions about your custody and access rights, it is best to speak with a lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.