Family Law and the COVID-19
It goes without saying that we are facing an unimaginable crisis which is having deep repercussions on society, businesses and families.
The practice of family law is viewed, by the Ontario government as an essential service in that it is a professional service that supports the legal and justice system.
The COVID 19 situation as clearly had an effect on separated spouses who have not resolved their issues. Of significance is the fact that access to our courts has, essentially, been suspended for the most part except for urgent matters as defined by the Superior Court of Justice. More information is provided below.
Example of what is not urgent
Here is a recent case considering the issue of urgency. The case deals with the process and the determination of urgency. It is one of many recent cases. All cases need to be discussed with a family lawyer to determine whether it may satisfy the issue of urgency.
March 15, 2020 Notice
In an initial notice to the profession and public dated March 15, 2020, the Honourable Justice Geoffrey Morawetz, Chief Justice, Superior Court of Justice, suspended the regular operations of the courts as of March 17, 2020 save and except what was deemed to be urgent family matters.
As of March 17, 2020 only urgent family law events as determined by the local presiding justices, were to be heard during this emergency period, including:
- Requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
- Urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
- Dire issues regarding the parties’ financial circumstances including, for example, the need for a non-depletion order.
Since that date, family lawyers in the Ottawa area have been communicating with each other to try to properly understand the protocols to access the courts and the determination of an urgent issue.
The issue of what constitutes an urgent matter is determined case by case. There is a 2 step process :
- An initial determination by a Judge as to whether or not the matter is urgent and requires a hearing;
- If the matter is deemed urgent, the next step is to schedule the hearing by telephone call or video conference.
There have been a number of published decisions on the issue of urgency and, as a rule, each case needs to be considered by a family lawyer to determine whether or not a test of urgency is met.
To complicate matters, those “court appearances” are either by telephone conference or video conferences and all documents are filed electronically.
April 2, 2020 Memorandum
On April 2, 2020, a second notice was published expanding virtual access to courts for various requests dealing with family law. Effective April 6, 2020, the following matters can be dealt with in family courts:
- Simple consent motions;
- Procedural motions for procedural issues and disclosure issues ;
- Case conferences for no more than 2 most pressing issues ;
- Selected Settlement Conferences if it appears that resolution is probable if the issues are focused.
(underlining and bolding are by Marc Coderre)
In short, as of April 6, 2020, the Ottawa, L’Orignal and Cornwall courts will continue to deal with urgent family matters as set out above as well as the expanded services described above.
I have, in recent days, had many conversations with various colleagues and it is clear that the family lawyers are committed to the resolution of family disputes.
For many years now, family lawyers have promoted the resolution of family disputes through alternative dispute resolution mechanism such as, mediation, lawyer-assisted mediation and arbitration. This has been at the cornerstone of my practice for a number of years.
Mediation and, in particular, lawyer-assisted mediation are promoted by our local Justices and there are many reputable lawyers/mediators who promote lawyer-assisted mediation as a preferred dispute resolution alternative.
The advantage of lawyer-assisted mediation is that each party is represented by a lawyer during a session of mediation which allows for a focused discussion on the issues to be discussed and resolved.
As a result of the COVID-19 situation, courts and lawyers are accessing the technology to provide virtual meetings to deal with family law issues. This is new for lawyers and courts who are used to dealing with clients, courts and judicial officers face-to-face. The implementation of this technology is a work in process for me. While I have always considered myself as being advanced in terms of technology, I am now exploring virtual meeting software.
Since this crisis, I have been looking into ZOOM and Microsoft Teams. As of April 5, 2020, I continue to test out this technology.
COVID-19 – How to resolve family dispute during court closure – protocols
I know that these are unprecedented and unseen times. It is stressful and overwhelming for many. As such, it is our goal to continue supporting you during this difficult time.
Our office remains open.
We are still here to help resolve your family issues. Phone calls and emails will continue to be answered in a prompt manner. In-person meetings can still be scheduled as we are taking extra precautions with cleaning and wiping down surfaces after each client leaves.
Meetings via other methods (by telephone or video call) can be arranged if this makes you more comfortable.
Negotiations and lawyer-assisted mediation as a method of resolution is how family lawyers prefer to deal with family matters. Of course, parties may often be left with no other option but litigation however, this crisis hopefully, will help parties involved in a relationship breakdown understand that there are alternatives to court to resolve their issues.
My firm remains committed to the implementation of the government recommendations and actions to be taken to prevent the spread of COVID-19.
More and more, I have telephone “meetings” with clients to discuss their issues and to prepare any documents required in a family matter. I have the technology to prepare court documents and to provide clients with draft documents remotely. I have always worked closely with my clients to prepare interactively court documents, letters or other forms of communications that need to be reviewed before they are sent out to opposing counsel.
- All of my appointments are now scheduled in increments of 1.5 hours;
- All clients are asked to wash their hands and/or use Purell before a meeting;
- Social distancing is implemented.
Although many services have been limited, our ability to connect with and help our clients will continue. On behalf of our office, we would like to wish you and your loved ones well during this time.