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The court allowed the father's appeal, finding the motion judge erred in striking his pleadings and granting custody without fully considering the child's best interests.
The father (M.H.) appealed orders from the Ontario Court of Justice in a child protection application, including the striking of his answer and the award of custody to the mother (M.D.) with supervised access for him.
The father had refused to participate in virtual proceedings due to religious beliefs.
The Superior Court of Justice allowed the appeal, finding that while the motion judge did not err in denying an adjournment, she erred in interpreting or applying Rule 1(8.2) of the Family Law Rules by striking the father's answer without considering if the delay would be unfair, and by failing to fully consider the child's best interests when making the final custody order, relying on an incomplete Statement of Agreed Facts.
The matter was remitted to the Ontario Court for an expedited hearing.
The court granted the mother interim sole custody and exclusive possession of the matrimonial home.
The applicant sought interim custody and exclusive possession of the matrimonial home, while the respondent sought joint custody and to retain the home.
The court granted the applicant interim sole custody, finding joint custody unworkable due to significant animus between the parties.
The respondent was granted unsupervised parenting time conditional on medication adherence.
The applicant was also granted interim exclusive possession of the matrimonial home, prioritizing the child's best interests over the respondent's business needs.
Costs were divided due to mixed success.
The court ordered the resumption of the father's parenting time, rejecting the mother's unilateral withholding of access based on COVID-19 concerns.
The respondent father sought an urgent order for the resumption of parenting time for the parties' 12-year-old child, Porter, after the applicant mother unilaterally withheld access citing COVID-19 concerns.
The court, applying principles from Ribeiro v. Wright, affirmed the presumption of maintaining existing parenting arrangements.
While the mother's initial COVID-19 concerns were addressed, her subsequent arguments based on the child's preferences, anxiety, and asthma were deemed non-urgent and lacking specific evidence.
The court ordered the immediate resumption of the father's parenting time with a minor schedule adjustment, but denied requests for make-up time and a police enforcement clause.
