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Family Matters: When Self-Help is No Help

5 minute read
Also authored by: jennifer coo

Lerners’ Weekly Family Caselaw Review #9

Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. Lerners Family Law Lawyers presents one of the most interesting cases from the week of November 16, 2020:

Justice MacEachern recently heard an urgent motion[1] brought by a father who sought an interim Order for the primary residence of the parties’ children to be with him and for sole decision making, after their mother withheld the children after their time with her and advised she would not be returning them to in person schooling due to her concerns about COVID-19.  This is but one of many urgent parenting motions that have been brought since March 2020 relating to COVID-19 concerns, but it is a particularly thorough and clear message from the Bench that self-help and unilateral decision making by parents will not be tolerated, even during a pandemic. Litigants have been warned repeatedly against this behaviour.

The parties had entered into a consent which established an equal week-on week-off parenting arrangement for the parties’ two children. That consent was incorporated into a temporary Order, dated March 4, 2020 (the “March Order”). The March Order also required that neither party was permitted to bring any further motions without leave from the Court, urgent or not. The matter was scheduled to proceed to trial early next year.

Following the March Order, the mother withheld the children from April 13, 2020 to May 4, 2020 and in an Endorsement dated May 8, 2020, the mother was warned by Justice Engelking that her behaviour was not reasonable:

“The law is clear that the children are to have as much time with each parent as is in their best interests, and that the parent who was most able to accommodate the time with the other parent would be the most suitable to have primary care of the children.  By her continual unilateral actions, Ms. Purdy is demonstrating to this Court but she may not be capable of ensuring that children have a positive consistent relationship with their father.  Consequently, any further failure by her to comply with Justice Audet’s Order may result in the children being placed in the primary care of Mr. Purdy, with limited access to Ms. Purdy.”

The Father was also granted leave to bring a motion with respect to the children’s attendance in school, which the mother initially opposed, but was ultimately resolved on consent.  On September 8, 2020, Justice MacEachern made a Consent Order which included terms that the children attend school in-person and that neither party could change the children’s schooling from in-person to online without written consent from the other party (the “September Order”).

On November 2, 2020 the mother tried to bring a motion to change the schooling and parenting schedule due to concerns about COVID-19 exposure. She was not granted leave.

On November 16, 2020 the mother advised the father that she was withdrawing the children from in-person learning and would not be returning the children from their parenting time with her. The father was permitted to bring this urgent motion.

Justice MacEachern did not accept the mother’s argument that the increased spread of the COVID-19 virus since the September 8, 2020 Order justified her unilateral withdrawal of the children from school and from the father’s care. He referred to the direction of public health authorities which support public schools remaining open.

The mother also raised concerns with respect to the Father’s parenting ability, including an allegation that his household was a COVID risk, which appeared to be unfounded given that when one child was sick the father took him for a COVID test, which was negative, and an allegation he was putting the children at risk by taking them to a mall, which was not given weight by the Court because public health authorities allow malls to remain open and there was no evidence that a visit to the mall could not be done safely.

Justice MacEachern found that “the mother’s unilateral “self-help” was not in the children’s best interests and must not be condoned”. It was particularly concerning to him that the mother acted this way despite the previous warning she received from the Court and despite the Court’s refusal to hear her motion on the same issues she raised in defence of her self-help. He found that it was necessary and in the children’s best interests to change the existing interim parenting time arrangements to ensure that the mother did not continue to act unilaterally in a self-help manner and violate the prior Court Orders.

The father was entirely successful on his motion. Justice MacEachern Ordered that the children would reside with their father pending trial, that the father had sole decision making pending trial, continued the September Order, and reduced the mother’s parenting time with the children to alternate weekends for a 48-hour period.

He also took the rare step and Ordered police enforcement of the terms of the Order. Orders for police enforcement are exceptional and “not made lightly,” but Justice MacEachern found this was the rare case which warranted such an Order.

This decision should be a cautionary tale to parents considering relying on the increasing COVID-19 case numbers to justify self-help and withholding children from their parenting time with their other parent. The Courts do not look on this favourably and the parent could find themselves in the position that Ms. Purdy did – with significantly reduced parenting time as a result of such behaviour.

ABOUT LERNERS FAMILY LAW

When much is at stake, there is no substitute for having the experienced and skilled advocates from Lerners at your side. You need compassion and understanding, but you also need someone to protect your interests. Our Family Law lawyers tailor their approach and strategy to your goals to achieve the best possible outcome. Our team, located in Toronto, London, and the Waterloo Region, serving the GTA, Southwestern Ontario, and beyond, has the experience to handle matters both straightforward and complicated, without ever over-lawyering or contributing to unnecessary conflict. With a successful track record that includes some of Canada's most complex family law cases, we are focused on getting you results and helping you move forward. Contact us to see how we can help.

[1] Purdy v Purdy 2020, 2020 CanLII 90809 (Ottawa, ON) MacEachern J (ONSC)

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