When the Courts Close: Alternative Relief During the COVID-19 Pandemic

For the last few weeks and into the foreseeable future, generally speaking and with few exceptions the courts are closed. However, this does not leave parties in family law matters without remedy or unable to resolve their cases. Given the extensive court closures the Chief Justice of Ontario recently called “upon the cooperation of counsel and parties to engage in every effort to resolve matters.” The Rules of Professional Conduct require lawyers to always behave with civility and attempt to resolve matters. During these uncertain times, this onus has in effective been increased

Is it an emergency?

Family courts remain open and functioning for true emergencies only in the most extreme and egregious circumstances. Decisions rendered by family courts in the last weeks deal almost exclusively with access issues, where one parent claims there is urgency in order to enforce or alter a pre-existing access schedule. The courts have unequivocally stated that the need for children to have frequent and continuing contact with both parents supersedes any potential risk in transferring children from one parent’s home to the other, providing the access parent is following cautious protective measures to avoid anyone contracting COVID-19. A parent who wishes to prevent access by another parent has the burden of proving that the other parent is not ensuring proper protective measures. Unless there is a true emergency courts are denying motions until after the pandemic has passed and will revisit individual parties’ behaviour down the road when things return to normal. It can be said with near certainty that in deciding matters once regular court proceedings resume judges will look at how parties conducted themselves during the pandemic. It thus behooves parties and lawyers in family law matters to take all measures possible to behave reasonably during these times.

Are you already in litigation (or even if you are not)?

For parties who are already in litigation and have found their case on indefinite hold as a result of the court closure there are pathways to resolution outside of court. Litigants should first assess their priorities and the scale of conflict. If and when practicable, parties with experienced, settlement-oriented lawyers can seek to resolve family law matters efficiently and cost-effectively. Also, third-party professionals can be brought into the fray to help parties come to an agreement or, when that is impossible, to make an order not unlike how a judge would make an order in court.

Settlement oriented lawyers

Experienced counsel on both sides of a dispute can often pre-empt the need for any third-party professional, assisting parties to set aside the emotion inherent in family law matters, significantly reducing costs thereby. Opposing but like-minded lawyers can often resolve issues relating to custody, access, support and equalization. An experienced and a good lawyer will have a solid idea of what a judge would order if a matter went to trial, and will be able to prioritize settlement over litigation to assist a client to shorten the process and resolve a matter by way of a comprehensive separation agreement rather than allow a client to go through the expense of litigation. This is the case whether the courts are in operation or not.

Mediation

Often, when two lawyers are unable to bring their clients to agreement but both parties are flexible and honest they may be able to resolve through mediation, a voluntary process during which a third party (often an experienced lawyer, retired judge or social worker) assists parties to come to a compromised resolution of their issues. Mediators vary widely in experience, education and capability. An effective mediator can be very adept at assisting parties to overcome their conflict and settle their case. Mediation can be conducted virtually via videoconference or telephone and is therefore a sound avenue of choice during the COVID-19 pandemic. The objective here is also to negotiate a comprehensive separation agreement.

Arbitration

Arbitration is akin to hiring a private judge, often chosen by individuals who value their privacy and wish to not appear on the public record (court records). Arbitration is similar to a trial, but the parties select their arbiter, who after a full hearing following specific procedural rules issues a ruling, very similar to a court. Arbitration can also be conducted virtually via videoconference or telephone and is therefore a sound avenue of choice during the COVID-19 pandemic. Whereas one does not pay judges, arbiters require the additional expense of fee payment to the arbiter, although arbitration is usually quicker than court (and the only alternative for a full hearing during the pandemic) and so the additional cost of the arbiter can often be cancelled out by the savings in fees parties would otherwise pay to their lawyers if the matter went through the usual court process. There are also sometime strategic reasons which play into choosing between an arbiter and a judge.

Mediation/Arbitration

Mediation/Arbitration combines the two aforementioned pathways. Parties attend mediation (see above) first. If they cannot come to a resolution on their own, the matter goes to arbitration (see above). This too can be conducted virtually via videoconference or telephone, as above.

Parenting Coordinators

For parties involved in a custody and access dispute without significant financial conflict, a parenting coordinator can evaluate the situation. Interviewing both parents and third parties involved with the family parenting coordinators engage in an assessment and provide recommendations. In the event that parties are willing to grant them such authority some parenting coordinators will create a custody and access schedule.

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Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel. 

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