Pandemic creates great waves in family law

COVID-19 has sparked novel custody disputes and court procedures and forced lawyers to work remotely

Pandemic creates great waves in family law

When the coronavirus pandemic spread around the world more than a year ago, it caused a shift in how all lawyers work, but perhaps most dramatically in family law. Family courts moved to virtual hearings, there were fights among divorced couples over child custody and in-person schooling during lockdowns and there was an increase in separations and divorces among struggling couples.

And, say family law practitioners, the long-term effects of the pandemic — both good and bad — will be seen for a while to come.

COVID-19 and its many restrictions have been stressful for everyone, “and without the resources and outlets people normally have” in their daily lives, it has taken a particular toll on mental health, says Manraj Grewal, an Ottawa family lawyer in solo practice. Since marriages can succumb to personal pressures, “definitely the pandemic will cause a ripple effect in terms of marriages ending,” he says, and especially with severe economic pressures placed on a family through job loss.

Separations and divorces have jumped more than 34 per cent in the United States by some estimates, says Russell Alexander of Russell Alexander Collaborative Family Lawyers in the Greater Toronto Area. That may be due to a bottleneck of cases from when the courts slowed down immediately following the pandemic outbreak in spring 2020. Still, as the pandemic wears on, all the stressors that might typically occur in a marriage are amplified as people work from home or have lost jobs, homeschool their children and develop “cabin fever,” he says.

“The pandemic, unfortunately, is changing a lot of relationships,” says Alexander, adding that his firm’s business increased at least 30 per cent in the first year of the pandemic.

On the flip side, the pandemic has reinforced many marital relationships, says Anne-France Goldwater, senior partner in Goldwater, Dubé family law firm in Montreal. The last generation that experienced great marital stability was the one that lived through the Second World War, she says. “When you live through adversity like that, that keeps you together for a lifetime. . . . When you share adversity as a couple, if you take it seriously and work hard at protecting your children and family, that reminds you that what’s great about marriage or other unions is that you’re not facing adversity alone.”

However, more fragile relationships “broke apart harder,” she says.

And parents have used COVID-19 “as a sword and a shield to justify certain actions and to pursue their own agendas,” says Grewal.

The pandemic was seized on as an excuse to withhold access, refuse to return children to the other parent or claim that frontline health-care professionals posed a risk to their children, says Alexander. Disputes started last summer as to whether, for example, a cottage rental with extended family would be in the child’s best interest and have continued since then.

In September, there was some direction from the court and case law regarding when it was appropriate to order a child back to school or homeschool, he says, after the government decided the social and other benefits of in-person schooling outweighed the risks from COVID-19.

Judges have generally indicated that if the government deems it safe, the courts will consider in-person school attendance and the like to be safe as well, says Grewal, who acted for the mothers in two family law cases (below) that addressed concerns about COVID-19.

One of the first COVID parenting cases to be litigated concerned a “nesting arrangement,” he says, in which the children continue to reside in the marital home and the parents take turns living with the children there while maintaining separate residences for when they’re not parenting.

In Guerin v. Guerin, which was heard and decided via telephone conference on March 31, 2020, the mother was immunocompromised. She charged that the father had been leaving the house — which the entire family had shared since early March — without regard for current COVID-19 protocols. She also accused the father of refusing to answer questions about cleaning and handwashing measures in the marital home.

Although that litigation is still ongoing, Ontario’s Superior Court of Justice granted the mother exclusive possession of the marital home temporarily. The court restricted the father’s contact with his children to electronic means.

In another Ontario Superior Court case, Joachim v. Joachim, the parties lived apart and the children’s mother’s partner was immunocompromised. The parents disagreed about whether their children should return to school when in-person classes resumed in September. The court concluded that the decision was not simply an educational one but also involved medical and psychological aspects. Therefore, the court ordered that the children attend school and extracurricular activities virtually.

When schools and shopping malls are open, Grewal says, “it requires some specific evidence . . . to demonstrate that one party close to the child is considered immunocompromised,” since contracting COVID-19 could potentially be fatal.

Accessing justice

Incidents of family violence have increased during the pandemic, and virtual hearings and trials may present a particular risk when a victim still lives with the abuser, as the latter could be present and intimidating the victim while she gives her evidence remotely, Alexander notes.

The pandemic has also adversely affected women since they must go to court to obtain alimony and support orders more often and fight custody and access issues, says Goldwater. Women’s jobs have also been more precarious. They are more likely to work part-time with less seniority and in businesses such as salons and restaurants closed during the pandemic.

And on the technological side, “if you don’t have internet access during COVID, you might as well stab yourself in the eyeball with a fork,” Goldwater says. “Ninety-nine per cent of our functionality was predicated on having a strong and sturdy and stable internet connection” after court hearings, case conferences and client conversations went virtual.

This lack of access has posed a challenge to lower-income clients without a home internet network, especially as public libraries and coffee shops, where Wi-Fi is freely available, closed their doors.

“Before COVID, [those clients] were at least able to show up in court,” Grewal says, adding that a colleague who works on child protection matters had cited this as a particular concern.

COVID’s digital (and other) revolutions

The silver lining to the pandemic and the swing to virtual is that it has made lawyers in the justice system much more efficient, says Alexander. Where it used to take four to five hours to attend in court, including commuting time to and from the courthouse and waiting for the case to be heard, “now, with Zoom divorce,” the total time, including preparing and debriefing the client, has been reduced to less than an hour, he says.

Goldwater would also like to see a greater implementation, earlier in the process, of alternative modes of dispute resolution and hopes the initiative of Quebec Superior Court Associate Chief Justice Eva Petras will have an enduring effect, too. Last June, Petras issued a communique saying lawyers appearing in family courts should “speak to each other before appearing at Court” and “discuss the appropriate case management measures required in the circumstances” for certain uncontested applications.

“It was very pleasant to see lawyers were really listening, and we were really working hard . . . to live up to the mission she was giving us,” says Goldwater, “to show the better angels of our nature.” 

Canada’s domestic violence statistics, 2019

400,000: number of victims of violent crime reported to police in 2019
26: percentage of those victimized by a family member: a spouse, parent, child, sibling or extended family member
67: percentage of victims of family violence who were women and girls
31: percentage of family violence perpetrated by a current spouse
20: percentage of family violence perpetrated by a parent

Family violence during COVID-19, 2020

Between mid-March and early July 2020:

54% of victim services that responded to a survey reported an increase in the number of victims of domestic violence they served during this time

29% said the number of domestic violence victims they served stayed the same

17% reported a decrease in the number of domestic violence victims they served

Source: Statistics Canada

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