How To Resolve Your Disagreements Over Parenting, Separation and Divorce While the Courts Are Closed Due to the Corona Virus
Coronavirus has had a devastating impact around the world. Governments have taken action in response. One of those actions is to close the Ontario Courts and only allow access to litigants in the most desperate of situations. Separation and divorce can also present difficult circumstances for parents and spouses. With the closing of the Courts, those separated parents and spouses have lost a way to resolve disagreements at a time when stress and anxiety can provoke more disagreement. There has been an increase in divorce applications in China since the start of the pandemic. The prospect of having to wait a long time to resolve Family Law issues creates a lot of anxiety for separated parents and spouses, who find the time of transition difficult and want to get it over. The good news is that there are ways to find solutions for parents and children, even at this difficult time.
COVID-19 has closed the Ontario Family Courts – the place where divorcing spouses traditionally went to work out the issues arising from their separation. For the most part, courts continue to hear matters in open courtrooms where the virus can spread. The system lacks the ability to hear matters electronically – over the phone or by video over the internet. So, coming to court has become a dangerous way to resolve things like parenting disputes, child support, spousal support, or property division because of the risk of transmission of the virus.
As troubling as that may seem, there has been a big push in Family Law to move away from dealing with everything, even most things in court. In fact, the upcoming changes to the Divorce Act in July will put a large emphasis on resolving things out of court. So, the coronavirus may just be pushing us into the future a little faster than people had planned or anticipated.
There are several ways to resolve Family Law issues – all the things arising from separation – without going to court. In fact, the vast majority of separating couples and parents resolve their matters without ever stepping foot inside a courthouse. Believe it or not, most family law cases are resolved with the parties signing a separation agreement without going to court. There are some requirements to have a legal and enforceable separation agreement, but none of those requirements involve going to court. In fact, lawyers for you and your ex exchange the required information and negotiate the terms without stepping a foot out of their offices – maintaining the social distancing required by the pandemic response.
So, even during the pandemic, you and your ex can move your matters forward toward a resolution.
Obviously, some disagreements are harder to resolve. That was why people USED to go to court, but for a while, they have rarely had to do so. Alternative Dispute Resolution – set procedures that are alternatives to court for resolving disputes – have been growing, particularly in Family Law. At my firm, we are trained in and use all the ADR options. And, in the face of the pandemic, we can use them to get matters finished for clients without waiting for the courts to open.
Many separating couples and parents have found mediation to be an effective way to resolve arguments. In mediation, the trained mediator helps the parties find ways to resolve their disagreements. This is very similar to what judges do at case conferences and settlement conferences, although since mediators charge for their time, they often spend a lot more of it getting parties through to a settlement.
Although traditionally mediations have been conducted in a boardroom, they can be conducted over the phone or through video-conferencing. Electronic mediation has become increasingly prevalent in places like Northern Ontario where the parties are far apart. However, it can work fine in many other situations, even in cases of “self-isolation” because the coronavirus cannot be transmitted over the internet. John Schuman has gotten parties to reach a settlement at electronic mediation – there are even situations where it is easier than in-person mediation. At a recent conference, John spoke about how to use electronic mediation effectively.
Collaborative Practice usually involves a series of meetings. Although, truthfully, the team also does a lot of work between meetings over the phone. Again, there is no reason why Collaborative Practice could not help separated spouses come up with their own solutions over video conferencing to avoid the transmission of viruses.
But, what if separated spouses or parents just cannot agree? What if they need a judge to make the decision for them? It is possible that they still do not need a judge or the formal, lengthy and more complicated court process. What they need is an impartial trained decision-maker to listen to both sides, consider the arguments and make the decision. That can also happen in Family Arbitration. In fact, many separating spouses like Family Arbitration better than court because they can pick an arbitrator they respect and trust instead of having a judge assigned to their family by chance.
Since there are no set legally required procedures in Family Arbitration – the process just has to be fair to both sides – there is no reason why the process cannot be conducted over the phone, by video conference, or even in writing by email. In fact, many arbitrations are done just that way. All of those options allow both sides to present their arguments and allow the arbitrator to make a decision.
Additionally, section 58.9 of the Family Law Act says that an arbitrator’s decision can be enforced by the Superior Court just like a Court Order. So, if you need to go to Court before they reopen, you may want to convince your ex to go to Family Arbitration now instead of waiting.
Parents who are having difficulty with their current parenting plan or parenting order may want to consider hiring a parenting coordinator to help them resolve the issues. Follow the above link or click on the podcast episode to the left for a podcast with more information about parenting coordination.
The best way to protect yourself, your children, and your financial security, is to find out how the law applies specifically to your situation and what steps you should take to get things to work out for you. Certified Specialist in Family Law (and author of the book to the left), John Schuman, has extensive experience assisting high net-worth clients on complicated legal matters, including stock options. Contact him right now by using the contact form below, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).
You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.
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