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Factual Background

In this case, the father brought an urgent motion for an order that the parties’ 5-month-old child be immediately returned to his primary residence, or in the alternative, an equal parenting schedule. Following the parties’ separation in early 2020, the father exercised some parenting time visits with the child but after an incident involving the police occurred during one of these visits, the father had not been given access to his child. The father argued that the mother “absconded” with the child, was an unfit mother and had a “dependency of over the counter medication and alcohol”. In response, the mother brought a motion to have the child’s primary residence remain with her and an order for specified access to the father. The mother denied all allegations and argued that it was in the child’s best interests to remain in her primary care because she had been the primary caregiver since the child’s birth. The mother was also concerned that the father and his family were not taking the COVID-19 pandemic seriously.

Legal Analysis

With respect to the issue of urgency, the Court found that the motion was urgent because the father claimed that the mother “absconded” with the child and denied him access since their separation.

The Court rejected the father’s evidence that the mother “absconded” with the child and left “without notice”. Since the father admitted to knowing the mother was moving out and taking her son, the Court looked to section 20(4) of the Children’s Law Reform Act and found that by knowing this the father implicitly consented or acquiesced to the mother and infant son leaving the home which suspended his right to exercise an entitlement to custody but not access until an agreement is reached. The father also admitted to multiple instances since separation in which he had access with the child. The Court determined that the father’s approach was not child-focused or in the best interests of the child but was rather focused on his rights as a father.

As a result, the Court found that it was in the child’s best interest to maintain the status quo of the mother being the primary caregiver, pursuant to a specified parenting schedule that also gave the father parenting time with the child. The court also included a provision which requires both parties to abide by all social distancing orders and do everything they can to ensure that neither themselves nor their child contract COVID-19.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.