COVID-19 & CHANGES TO FAMILY COURT—Is this the force needed to modernize access to justice?

We are still under strict lock down orders from the government and the courts remain closed across the country. The family law system in Canada has always been described as “broken”, and the court closures have only placed greater burden on separated and divorced couples. They are facing the prospect of not having access to a judge for an indeterminate amount of time, which comes with a variety of consequences.

Although the courts have made exceptions for urgent cases, this is only limited to child abductions, restraining orders and child abuse cases.

This leaves behind a significant portion of hearings pertaining to access and custody of children, claims for the sale and division of matrimonial property, which will not get any court time unless alternative processes are created. 

Without such an alternative, significant delays in trials are anticipated . This will not only increase legal costs, but it will also leave families with no court resolution on urgent matters such as child and/or spousal support, and parenting schedules that aren’t considered urgent by the courts at this time. They still remain to be pressing matters for the parties involved.

These delays will undoubtedly affect the financially vulnerable population. There will likely be a rise in support claims due to mass layoffs as a result of the pandemic. Also, a payment from the division of family assets becomes critically important when income streams have been cut off.

On the parenting sides of things, parents who cannot agree to a parenting schedule may be locked in conflict until the courts reopen, sometimes within the same household. A child who has no court-mandated access to a parent will have to wait an undetermined amount of time to see them, contrary to the best interest of that child.

But this may be an opportunity for family law to change for the better, without the aid of the courts. The courts also are being forced to change their processes to become more streamlined, efficient and able to proceed despite the challenges of the pandemic.

Alternative dispute resolution processes, like mediation, arbitration and collaborative family law, have been created and refined over the past several decades, and do not requires the use of the courts. We are living in an era with sophisticated technological advancements such that parties can effectively resolve their family law disputes online .

Through online dispute resolution, parties can be anywhere in the world and can securely and conveniently mediate or arbitrate their dispute without ever having to meet in person. In an online mediation, arbitration or collaborative divorce, the separated couple, their lawyers, and/or the mediator/arbitrator use a shared video conference platform such as Zoom, and negotiate and resolve their disputes virtually.

Unfortunately, the Canadian justice system remains to be slow to adapt and change. For example, in many courts, applications can only be filed in person with limited exceptions. Court appearances are usually restriction to in-person applications, particularly when a witness is giving evidence. This is very limiting to those in remote communities or with mobility issues. Documents must also be commissioned and notarized in person, thus continuing to restrict access to justice for many.

There are better alternatives and we should look to the United States as reference. For example, in Alaska, prior to the COVID-19 pandemic, courts routinely allowed litigants to be sworn in and give evidence over the phone. In New Mexico, court documents such as affidavits no longer need to be notarized or commissioned in person. In New York State, some restraining-order court hearings for domestic violence cases can be heard by way of video conference.

In conclusion, there are ways to modernize and update the Canadian court system in order to allow better access to justice. The longer that physical/social distancing is necessary, the more courts will be forced to evolve, thus increasing options for remote hearings and modernizing many outdated processes.

Updating and streamlining legal processes was long overdue, and this pandemic may force some positive development for family law and access to justice in general.

If you or a family member are faced with a family law-related matter, it is important that you get adequate legal advice and representation. Our team at Noohi Law is dedicated in ensuring that you achieve the best results possible. Contact us at (416) 907-7364 or send us an email with your inquiry at [email protected]

Disclaimer: This article is written for informational purposes only and should not be relied upon as legal advice

https://www.cbc.ca/news/opinion/opinion-family-law-courts-access-corononavirus-1.5516067