COVID-19 has thrown the world into a state of uncertainty, The pandemic has impacted virtually every aspect of our lives and work, and the Canadian legal system is certainly no exception. How has the virus affected family law, how will this affect you, and how can you face the uncertainty with greater calm and control?
COVID-19’s Impact on Family Courts
Several aspects of the family law system have been significantly impacted by COVID-19:
- Partial Shutdown of the Courts
- Slowly Navigating New Digital Processes
- The Invention of the “Bubble”
- Divorce Act Changes On Hold
This is one area in which it is clear that we are NOT doing business as usual: at first, the courts would only hear cases that were considered “urgent.” Non-urgent cases were deferred. This is now opening up to include non-urgent matters, including non-urgent motions, conferences and consented matters.
Timetables for resumption of backlogged cases, including cases that were headed toward trial have been changing according to progress on the COVID front. Currently, our Superior Court in Waterloo Region is due to review these cases and other pending matters in early July. We do not know yet whether counsel will be attending at the courthouse or teleconference/zooming will be used.
Despite the loosening of the restrictions, plan on any non-urgent conferences, motions, and trials to be postponed until mid-summer (at the earliest). What is considered urgent? Typically, this involves cases where there are issues of violence or in which one parent is not abiding by their separation agreement or court order. Children’s Aid Society cases, especially those where children remain at high risk, are also expected to be give some priority.
Contested divorces, support decisions, custody arrangements that cannot be resolved without intervention, and other such cases do not make the cut as urgent.
This leaves many people in a state of limbo. For example, individuals may not be able to finalize custody, support or property division issues. Children can find themselves left in the lurch in terms of custody. Some parties may miss out on the spring/summer real estate season And, of course, many separating couples are forced to quarantine together, which can be a great source of tension.
If you have been involved in a legal issue, you know the system is built on paper! The courts have never been early adopters of technology, but COVID-19 is forcing them into the digital age. They have tried to adapt digital practises and tools (on an emergency, temporary basis) but it can be difficult to navigate, especially as legal offices are working remotely and without the assistance on which they normally rely.
We predict that COVID-19 will be the push that the court system needs to overhaul the process and adopt streamlined technological solutions in the future.
We are now living in the age of the “bubble.” This refers to the circle of people with whom you come into contact. It could be your family who live in the same house or, as in many cities across Canada, you could create a “cohort family.” For example, two families may become one larger group, trading child care duties on and off so the other adults can work an uninterrupted shift at home.
This can get tricky when you have two parents in two different households who share custody. Essentially, the children go from bubble to bubble. It may be much more complicated, as well, if you add stepchildren who come and go into the mix, if one parent works in a high-risk field, or if there are medically-compromised people in either household.
While this can be complex, and confusing, a number of recent Ontario Superior Court decisions indicate that parents should follow their existing agreements and that all parties should find reasonable ways to maintain parental relationships. Again this can be difficult: what if one parent loses a job? Has to self-quarantine? Suddenly has the children full time and needs more support? Flexibility and compromising are necessary in maneuvering in this new world.
Amendments to the Divorce Act which were enacted in 2019 are on hold until at least March, 2021. Both federal and provincial courts have jurisdiction over issues like custody and access to children, but from one province to the next, there are different provisions and even different terminology. The federal government wants provincial governments to bring their legislation into alignment to create a cohesive system that applies to all Canadians.
With the state of the world today, though, this has been placed on the back burner. The bottom line is that if you have a claim under existing legislation, it will not affect you when the Divorce Act amendments are eventually put into action.
One of the more interesting and perhaps overdue changes introduced by the Divorce Act amendments is the scrapping of the terms “custody” and “access” in favour of “parenting plan” and “parenting time”. Even though the enactment is delayed, we find that we and other lawyers have begun to use these terms more and more in discussions and negotiations. That’s a good thing.
The Good News
Yes, there is some good news. If you can settle your separation agreement or custody arrangement outside of the courts, then you can move forward and finalize these matters now. If you had not considered alternatives to court proceedings before, now is certainly the time. Through the collaborative divorce process, mediation, and/or negotiation, many couples are settling their issues and finalizing their agreements fairly and fairly quickly, all things considered!
The courts may be partially closed, but lawyers are still working, and they can help you resolve your family law matter without having to go to trial. This is a viable solution in many cases.
Tips for Surviving the Uncertainty
Some of the best advice for dealing with the uncertainty of COVID-19 apply to the legal system as well:
- be kind,
- be considerate,
- and be understanding.
Most of us have been thrust into very different work and living conditions, and a bit of compassion goes a long way.
For more tips, check out: Separately Together During COVID-19: Dos & Don’ts For Successful Separations
Navigating a family law issue is not typically easy under the best of circumstances; when you add a pandemic, social-distancing, and safety regulations to the mix, it becomes much more complex. However, there are still effective methods for resolving your case, and these can be handled now so you do not have to continue to live with ambiguity. If you need assistance with a divorce, custody, or support matter, let us know.