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Rosemary Bocska

New Year, Same Pandemic: What to Expect for Family Law

There can be no debate.  The COVID-19 pandemic has had a deeply negative impact on many aspects of our society.  The economy, business, family interrelationships, and social interrelationships, just to name a few.  But how has the pandemic affected Family Law, specifically?

The answer lies in examining the unavoidable impact on the courts’ administration processes, and on the broader Family justice system as well. Some of the changes have also manifested themselves in the specific mechanisms. Changes related to child custody/access, and in the enforcement of child support obligations.

Here are the details:

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1) The Courts and the Justice System

The first category of change relates to the workings of the courts themselves and public access to justice. 

Early in the outbreak there was a near-total lockdown of local courthouses . This coupled with government-imposed mandates around physical distancing.  Since the justice system could not grind to a halt entirely, it had to come up with a viable short-term solution.   Using technology, profound changes took place to ensure that court filings could still be received. That court and tribunal hearings could still proceed in some fashion, despite the restrictions and shutdowns.

Electronic Court Filings. 

Family Law court filing system in Ontario underwent a sea change, by swiftly incorporating a new, secure electronic filing method. Documents can now be filed online or in some cases sent by email to the specific court.  The new system supplants the arguably-archaic, paper-only model that existed throughout the province prior to 2020. (And of course, those who still need to file paper copies in person may continue to do so).  The new tech-based system is far more efficient and environmentally friendly .

Swearing Affidavits.

In Family Law matters, it is often necessary for a parent to swear an Affidavit. Normally, swearing in takes place before a lawyer, notary public, or commissioner for taking affidavits. In-person swearing of Affidavits is temporarily abandoned and adjusted. Instead there is commissioning by video-conference (e.g. Skype, Zoom or FaceTime): called “virtual” commissioning.  Alternatively, in some instances it may be possible to file an unsworn Affidavit with some courts.

Virtual Hearings.

Another COVID-19 adjustment – and many would say an “improvement” – to the existing justice model involves temporary access to virtual trials and other kinds of hearings. Also conducted through the use of teleconferencing technology.  Even though the Ontario Court of Justice has resumed some in-person Family Law hearings effective November 30, 2020, many proceedings will still be heard only virtually.  Other courts are also re-opening, but only slowly.  This means that virtual hearings – which save time and money for participants – will remain the predominant model for several more months at least.

Adjustments to In-Person Hearings (Where Allowed).

For those hearings that must proceed in-person, there will be extra screening measures in place. Including a new screening tool that features questions aimed at identifying COVID-19 symptoms in attendees.  Physical distancing protocols, including masking, will be required.  Also, there are stipulations and limits around who can be in attendance for those in-person hearings still that remain necessary.  For now – and with limited exceptions – this includes the parties, their lawyers, and the witnesses.

2) Changes to Custody/Access and Enforcement

When the pandemic first broke in 2020, it quickly came to light that existing Family Law orders and day-to-day arrangements between parents would need adjusting.  These focused on the following areas:

Adjustments to Access Rights. 

COVID-19 impacted some divorced or separated parents more directly than others. For example, access parents with front-line jobs (e.g. in health care or doing work in hospitals) or those who live in other jurisdictions that would require the child to travel, may have seen their access rights curtailed.  This is in direct response to the potential exposure risk that the child might face. If they continued access on the previous schedule. Likewise true, if a child engaged in distance-learning rather that attend in-person at school because of the Pandemic. The parents will have had to accommodate those realities by making adjustments to their existing arrangements.

Ideally, parents in these kinds of scenarios will have reached an agreement themselves. Adjusting to a “new normal” when it came to child custody and access.  However, some parents have had to have the matter sorted out by a court.  In all cases, parents should try to remain flexible on these items. It seems that access-related challenges will persist well into the new year.

Supervised Access Curtailed. 

Government-run supervised access centres in Ontario have been largely closed throughout the pandemic.  This put a temporary hold on the ability for parents to enjoy their supervised visits; when required by court order.

However, in connection with supervised exchanges, the parents may be able to come to an agreement that they will each pass the child over to the other in a COVID-19-safe public place, such as the end of a parent’s driveway, the front lawn of a friend, the local police station, fire station, hospital, etc.  They may also arrange for an independent witness to view the exchange.   The new plan may have to be formally approved by the court, however.

The Role of the Family Responsibility Office.

The Family Responsibility Office (FRO) has continued during the COVID-19 pandemic to collect support directly from delinquent support payors.  As of September 28, 2020, courts also resumed dealing with FRO enforcement matters, such as suspending the licenses of payors in default. Initiatives that had been temporarily suspended due to the outbreak. 

The FRO is also taking information and making the needed administrative adjustments from payors. Specifically for those who are having new, COVID-19-related financial challenges with making their support payments. Also, the FRO has advised that support payments will not be deducted from funds received under the Canada Emergency Response Benefit (CERB). Other sources of a payor’s income remain eligible to be garnished.

3) Amendments to the Divorce Act Stalled

With all that said, not every adjustment that occurred in the past year was a good one – or even a neutral one.   The impact of COVID-19 caused long-awaited amendments to the federal Divorce Act to be put on-hold until March 1, 2021.  

The changes in that updated legislation reflect vast improvements to the existing divorce and support regimes, most predominantly in the area of reducing conflict between divorcing spouses.  The amendments also include important fortifications relating to the laws around curbing family violence, and strengthening support enforcement.  Now, these and other related changes to the federal laws will be implemented on a staggered basis over the next few years.

In Conclusion

The list of changes prompted by COVID-19 is long. Admittedly, some are only temporary by design.  But some of these adjustments have turned out to be necessary and much-welcomed improvements; likely to become permanent fixtures in the Family Law system.

This is because – perhaps ironically – many allow for greater access to the justice system than before the COVID-19 outbreak, and have therefore been wholeheartedly embraced by courts, judges, lawyers, and the public alike.

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