McNulty v. Graham: Can I obtain sole custody of my child if my ex-spouse is not complying with COVID-19 protocols?
McNulty v. Graham, 2020 ONSC 2264
Background
On February 6th, 2019, Justice Swartz made an order that the parents share joint custody of their four-year-old child. Since that date, the parties shared a week-long access arrangement.
Family Law Issue
Can a parent obtain sole custody of the child if their ex-spouse is not following COVID-19 protocols?
Facts
On March 22nd, the mother failed to return the child to the father, insisting that the father was not complying with social distancing protocols directed by the public health authorities. The mother said that this put the child at risk of exposure. More specifically, the mother claimed that:
- The father lived with five people, two of which were not family members or permanent household residents;
- At minimum, two of the members of the household were working and therefore exposing themselves to the virus; and,
- Some of the household members were purposefully not complying with social distancing protocols.
Conclusion & Analysis
The Judge found the case to be urgent because denial of access and the potential of exposing the child to harm are sufficiently important to warrant a hearing.
In the end, the Judge ordered that the existing terms of custody and access continue, despite the mother’s concerns because the mother did not have sufficient evidence to prove that the father was not complying with COVID-19 protocols.
