What is the evidence that supports a motion for exclusive possession of the matrimonial home in a COVID-19 case?

For the reasons that follow, the mother will be entitled on an interim and on a without prejudice basis and order for exclusive possession of the matrimonial home. - Dr. Livingstone’s letter dated March 27, 2020 confirms the mother’s serious health issues that could be compromised if exposed to COVID-19 virus. He states: “She is at higher risk of contracting infectious diseases and higher risk for complications/more severe respiratory infections due to her medical conditions. Given the community spread of COVID-19 I recommend she isolate as much as possible from possible virus exposure to avoid contracting this infection. This would include avoiding contact with other people and only leaving the house when absolutely necessary until the risk of community infection and this state of emergency as (sic) subsided.” - It is in the best interests of the children that they remain in their home with a parent. I do not have their wishes and preferences at this point as this motion was filed on an urgent basis; - The issue for determining is solely dealing with events in this family as a result of the COVID-19 pandemic. I find that the mother has satisfied the onus set out by Justice Pazaratz in Ribeiro v. Wright 2020 ONSC 1829, at para. 21: a. specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols. b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc. c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home. - The mother’s concerns are that she has health issues which make her particularly vulnerable in this pandemic. Given her vulnerable immune system, she is going beyond the COVID-19 protocols and guidelines which are geared to the general public; - The mother’s affidavit confirms that the father has not been forthright on his excursions outside the home, e.g. he had told her that he was driving around on March 19, when the girlfriend confirms that he was with her; - I acknowledge that it must be challenging for a separated couple to live under the same roof. Yet, although the father is not obliged to provide all details of his whereabouts, his lack of response and at times, misleading information, of where he has been places undue stress on the mother and places her health at rise. For example: -on March 20, 2020, he did not tell her where he was going; - On March 21 and 22 he left the matrimonial home on a variety of occasions; -On March 23, he left home mid-morning and then ater left with a canoe - The evidence indicates that despite his commitment to follow COVID19 protocol he leaves the home continuously and returns without advising her where he went or does not wash his hands upon his return to the home; - She indicates that he went on vacation with his girlfriend and she had the children during his week; - Even though it is not a directive that he must completely self-isolation, this is not a situation of “business as usual”; - In this particular case, although the father states that he is following the COVID-19 protocol, he is not following all measures deemed necessary given the mother’s particular circumstances; - A deterioration of her health would affect the children; - As well, two children have asthma and although there is no medical evidence confirming their status and their vulnerabilities, certainly any health condition could possibly affect an individual’s general health; - The father has alternative accommodations including his girlfriend’s home and his parents’ home (if they permit him); - His attitude to the mother in not responding to her requests as to locations and to wash his hands, has placed her and the children at risk; and - In his materials, the father has failed to provide sufficient details and explanations for his numerous absences from the matrimonial home nor has his girlfriend provided evidence that she has been following the COVID-19 measures.