The past year has been one like no other in family law. Almost from the day we entered lockdown in March of last year, my phone has been ringing non-stop.New clients. Current clients. Anxious parents claiming that their co-parent was flouting COVID-19 rules and putting their children’s safety at risk, wanted to deny the children’s co-parent access. Former couples at odds over whether it was safe to send their kids back to school asked the court to decide the dilemma. Many people lost jobs or had to shut down businesses, and as a result, couldn’t meet their support obligations.
It hasn’t been an easy year for divorced or separated parents. As they adjusted to a strange new normal during a global pandemic, some also had to deal with troubling questions around whether their co-parent shared the same views on the virus. From the cases I’ve handled this past year, I can tell you many do not.
Cooperation and consensus
The family law system has been designed to encourage couples who want to end their marriage to resolve their differences by avoiding litigation wherever possible. After someone brings an application for divorce, they and their former partner have to attend several mandatory court conferences before they can have their day in court.
For high-conflict couples who can’t agree on anything, four months can be an eternity. The reality is that the families in the court system are most in crisis, yet they don’t have quick access to justice.
Wherever possible, I encourage clients to settle before going to court. I know if they can agree on important issues such as custody and how to divide their assets, it will serve the family in the long run. But some spouses are so hostile that negotiation and agreement are impossible. They need a judge to lay down the law.
Insights into what judges think
Legal decisions are grounded in the concepts of fairness and reasonableness. When a judge is deciding on a custody matter, they consider the children’s best interests and which arrangement makes the most sense to ensure both parents have time with their children.
A couple of recent cases provide important insights into how judges are resolving conflicts for those involved with the family law system.
The first case involves a judge calling out legal counsel as well as an ex-husband for unreasonable behaviour. After more than seven years of trials, court orders, appeals and re-hearings, the man repeatedly refused to comply with a court order to pay his wife $13,759 a month in spousal support.
In this decision, the judge highlighted how the pandemic is straining court resources like never before, saying the courts will no longer tolerate “litigation nonsense.”
“Even working at maximum efficiency, our reduced capacity in family court means that every day more and more families are left waiting for access to justice. In many of those delayed cases, the well-being and circumstances of children and vulnerable people are at stake,” Judge Alex Pazaratz wrote.
The lesson for family law litigants is to be reasonable. If the court imposes an order, comply with it. If you can’t agree with your ex, “I’ll see you in court,” shouldn’t be your go-to response.
As lawyers, we have a duty to encourage parents who are in conflict to figure out solutions themselves. If your children’s other parent wants to keep the kids for an extra hour on Sunday, you should be able to handle the negotiation without involving your lawyer.
Vacation from COVID-19
The second case illustrates the challenges both parents and judges face as they navigate unchartered waters amid the pandemic.
The case involves an Ontario mother who took her children to Newfoundland over the Christmas holidays to visit extended family. Although the father was concerned about being away from his kids during a one-month vacation, he agreed to the plan with the understanding they would return home on Jan. 7. When they didn’t, he brought a motion asking the judge to order the mother to bring them back.
According to the mother’s evidence, all three children expressed fear and apprehension about going back to Ontario, where case numbers are high, and their schedules and activities have been significantly curtailed. The youngest child, 13, said he was “terrified” about returning. She asked the court for permission to stay with the children in Newfoundland, at least until Ontario schools re-open for in-person learning.
Because case numbers were relatively low in Newfoundland at the time –– the province had only six active cases in mid-January –– residents and visitors enjoy relative freedom in terms of gatherings with family and friends.
From his remarks, it’s clear Judge Alex Pazaratz sympathized with the children who were enjoying a “vacation from COVID.” But he said nothing in his job has prepared him for “how to respond when a 13-year-old youth says he’s terrified” about returning to Ontario.
“Imagine business as usual. No restrictions. No lockdowns. No curfews. No curbside pickups. No daily infection numbers. No death counts. No contagion. No constant fear,” the judge wrote.
Still, the judge expressed concern that the conflict has resulted in the father being cut off from his children, who are angry with him for opposing the mother’s plan.
“At this point, the father feels helpless. He is worried about the children, but he is unable to monitor or assist them because they refuse to talk to him, and they are so far away,” the judge said.
The court adjourned the father’s motion to collect additional information and ordered the parents to arrange counselling for their 13-year-old son to help inform the timeline of the family’s return to Ontario.
This is a tough case and one that could potentially set a dangerous precedent by allowing parents to violate court orders and travel to places where the risk of contracting the virus is low.
Those of us who work in family law know that some parents have been playing fast and loose with the rules to deny access throughout the pandemic. Except in extenuating circumstances, I don’t condone denying access. The longer the children are not in contact with a parent, the greater the risk for alienation, which is a serious concern.
The family law courts were backlogged even before COVID-19, but it’s worse now in most jurisdictions in the province. As I write, it’s March 2021 and conferences with the court for my clients are being scheduled for July and August, at least four months out. Trials dates are even further out in the calendar.
As lawyers, we need to do more to encourage clients to settle their differences outside of court, both during divorce and for any ongoing disputes after it’s finalized. When we don’t, we contribute to the congestion in a system that is already bursting at the seams.