Resolving Family Law Disputes During COVID-19 lawyers provide these key tips to help separated families during difficult times. In today’s Covid 19 focussed family law blog senior family lawyer, Peter Graburn, explains that family matters can continue to be resolved without delay.
These are anxious times. Due to the COVID-19 virus: schools, offices, and non-essential businesses are closed (in Alberta, and British Columbia legal and alternative dispute resolution services are designated ‘essential services’); the financial markets are down; some people are working from home, others continue to work on the ‘front lines’. No-one knows how long this situation is going to last. But despite (some say because of) this uncertainty, family disharmony and breakdown continues. Resolving Family Law Disputes During Covid 19 is a priority.
All of our 6 offices are open for new clients and our top-rated family lawyers continue to work overtime to help our current family law clients in resolving family law disputes during Covid 19. 1 877 602 9900.
Resolving Family Law Disputes During Covid 19 1 877 602 9900
At the same time, many of the Courts are ‘closed’, not hearing anything but urgent and emergency matters for months to come. So how are people going to deal with their family law disputes during this COVID-19 situation? Fortunately, there are other ways of dealing with, and ultimately resolving, family law disputes, both in the short and longer-term. Resolving family law disputes during Covid 19 needs to be a focus for parents who want their children and themselves to move forward successfully during the Coronavirus pandemic.
Coronavirus Covid 19 Family Lawyers
In previous articles, we discussed the many options along the dispute-resolution continuum for resolving family law matters, from trying to work this out yourself to having a judge decide the matter in Court. But how feasible and (more importantly) how binding are these different options for resolving family law disputes during Covid 19currently? Let’s take a look at some:
Court – as indicated, Courts across Canada are generally closed (except for urgent and emergency matters, mostly in criminal and family law matters) due to the COVID-19 pandemic – it may be some months before they are open again. However, this may not be all bad. While some matters may need to be decided by the Courts (ie. where the parties cannot agree to use another process), the Alberta Court of Appeal (see: Kawchuk v. Kovacs 2016 ABCA 210 at para. 38) has stated:
“As mentioned by the chambers judge in his Reasons, it is a policy of the courts to encourage settlement of disputes between parties including matrimonial disputes.”
Even the Courts agree that other dispute-resolution processes (including Court-supported Case-Flow and Dispute Resolution Officers, Judicial Dispute Resolution, etc.) are likely better places to resolve family law matters (ie. custody and parenting of children) than in the Courts;
Mediation / Arbitration – in numerous previous articles we described the different types and benefits of mediation/arbitration. In this voluntary process, the Mediator/Arbitrator (usually a senior family law lawyer) first attempts to have the parties come to a mutual (sometimes creative) agreement (mediation). However, if unsuccessful, they are then authorized (under the provincial Arbitration Act) to make an Award that has all the authority of a Judge’s Court Order (arbitration). Arbitrators’ decisions are very hard to overturn, except in the most special of circumstances, as indicated by the Alberta Court of Appeal in Alan v. Elliott (2019 ABCA 290) at para. 30:
“Kawchuk held that it is the policy of courts to encourage dispute settlement:… This policy militates against setting aside an arbitration award except in the most compelling cases. In light of the history of this arbitration, granting permission to appeal will not encourage dispute resolution. Further, there are no compelling reasons to grant permission to appeal in this case.”
During this time when the Courts are effectively closed due to the COVID-19 situation, mediation/arbitration (specifically arbitration) is currently the only real alternative to have binding decisions made in family law matters;
4-Way Settlement Meetings – but do all family law disputes have to be resolved by 3rd party decision-makers (ie. judges, arbitrators, etc.)? – no. Many can be resolved by negotiations between the parties themselves, together with their lawyers, who can lead the parties through the various issues to be resolved (children, financial support, property) and advise them of their rights and responsibilities/strengths and weaknesses on each of these issues. Even in these days of social distancing, these meetings can still be held using video and teleconferencing technology (ie. Skype, Zoom, etc.). Once a negotiated settlement has been reached between the parties, it can then be written up in a formal Separation Agreement and made legal (ie. binding) by the lawyers providing Independent Legal Advice (ILA);
Private Discussions – finally, at any time during a family law dispute (except if prohibited by Court Order or Arbitrator’s Award), the parties can always meet to discuss and try to work out matters between themselves (ie. “kitchen-table discussions”). During this time of COVID-19 when the Courts are temporarily closed, these discussions may be particularly helpful to work out immediate, short-term issues (ie. scheduling of parenting time of children, covering outstanding bills, etc.). However, as these discussions may be viewed as “some evidence” of agreement on issues, caution should be taken in these discussions not to make major decisions (ie. custody of children) without getting independent legal advice (ILA) on these matters first. These discussions are often helpful to attempt before any formal (ie. court or arbitration) applications are made. In a very recent emergency application regarding child access during COVID-19 (see: Ribeiro v. Wright 2020 ONSC 1829, more fully explained in our blog Urgent COVID-19 Child Custody Parenting Applications Lawyers, the Ontario Superior Court of Justice advised (at para.’s 28 & 30):
“I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner… None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”
Resolving Family Law Disputes During Covid 19 1 877 602 9900
These are challenging times. Personal, financial and family decisions still have to be made, often under conditions, we have never experienced before. Due to the COVID-19 virus, some of the options we have relied on before to assist in making these decisions are currently not available; others (lawyers, coaches, mental health care professionals, etc.) remain available (perhaps remotely). Sometimes we have to look to new and creative ways of making these decisions and resolving these disputes – this is one of those times. “None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.”