Jackman v. Doyle: Unlawful Withholding of a Child

In Jackson v. Doyle, the Court heard an urgent motion brought by the mother, seeking the return of her two children from the father’s care and control. She alleged that the father wrongfully withheld the children from her and unilaterally removed them from her care. By the Endorsement of Justice Shore dated March 19, 2020, the matter was deemed urgent and was heard by Justice Diamond on March 20, 2020.

Legal Background

The parties commenced cohabiting in April 2012 and separated in July 2019. They continued to reside in a property owned by the mother until December 2019, at which time the father moved out to live in a rental property of his own. They have two children who are five- and three-years old. The children have been primarily residing with the mother since separation. The father never had access to the children without a nanny being present.

Upon the father’s return from a trip to Brazil, he informed the mother that he intends to take the children to live with him at the rental property for the week of March 15, 2020. The mother, through counsel, notified the father of her lack of agreement with this proposal. The father, in turn, attended the mother’s property and removed the children without her consent. The father continues to maintain the position that the mother consented to him having the children for the week of March 15, 2020 and that he will return the children once the mother agrees to a 50/50 parenting time schedule.

Furthermore, during the week of March 15, 2020, the children fell ill and developed a fever. The father simply treated the children with regular acetaminophen and continued to take them to public places, which is deeply concerning to the mother in light of the current COVID-19 situation.

Decision

Justice Diamond found that it is in the children’s best interests to maintain the status quo. Until the week of March 15, 2020, the status quo was that the children resided with and were cared for primarily by the mother. The father’s explanations for withholding the children lacked an air of reality. Given the fact that the children’s status quo was unilaterally altered by the father’s actions, Justice Diamond ordered that the children be returned immediately to the mother’s care and control at her property.

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