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Conflict resolution puzzle

Judge urges heightened accountability regarding family disputes during COVID-19

Tuesday, April 07, 2020 @ 10:49 AM | By Simran Bakshi

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Simran Bakshi %>
Simran Bakshi
With COVID-19 creating havoc in nearly every aspect of our lives, it is difficult to see any positives coming from this pandemic. The one silver lining however seems to be the renewed focus on alternative dispute resolutions (ADR) in family law.

Our family courts, as a matter of practicality, are unable to function on a “business as usual” basis, reserving limited legal resources to the most urgent of matters. As a result, parents are being urged to make a genuine attempt to problem-solve disputes amongst themselves before even considering resorting to litigation. Even then, there is little prospect of the courts intervening unless the issue truly constitutes an emergency or in other limited circumstances.

As Justice Alex Pazaratz reflected in the recent decision of Ribeiro v. Wright 2020 ONSC 1829, wherein the court was asked to resolve a dispute regarding whether it was reasonable for parents to continue to adhere to access as ordered during the outbreak of COVID-19: “Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

“Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

“In family court we are used to dealing with parenting disputes. But right now it’s not ‘business as usual’ for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously.”

Ironically, this pandemic seems to have breathed new life into ADR in family law.

Though efforts are being made to expand the scope of matters that our courts can deal with, long gone are the days of easy access to the family courts to resolve routine parenting disputes.

We are now in an unprecedented era where parents have little option but to make sincere efforts to co-parent before escalating a dispute. Even then, parents must be resourceful in finding an ADR process that will accommodate the restrictions presented by COVID-19 and be open-minded and adaptable to creative parenting solutions.

Parents have been warned in no uncertain terms that the courts will come down on any party who fails to demonstrate such efforts in good faith.

While these are extraordinary times, the principles that parties are being encouraged to adopt of problem-solving, collaboration, open-mindedness, resourcefulness and adaptability are hardly new.

These tools have often been overshadowed by litigation because let’s face it; parenting disputes are not easy to work through. Asking a party to think objectively when the decision involves highly personal and subjective considerations about the dynamics of a previously functioning family unit is a tall order.

The COVID-19 era has brought with it a sentiment of heightened accountability. While a party may not like the notion of having to rigorously work through disputes with a former spouse outside of court, the reality is at present there may be little other option.

In a system that is overburdened by the sheer volume of cases presented, heightened accountability may not be such a bad thing, especially for the parties involved.

The COVID-19 pandemic is a forced experiment that will demonstrate whether some of the burden of family law litigation can indeed be shifted to ADR.

If nothing else, this is the one silver lining.

Editor’s note: Information in this article is current as of time of publication.

Simran Bakshi is an associate lawyer at Toronto’s Wise Law Office and was called to the Ontario bar in 2014. Her areas of practice include employment and family law and civil litigation.

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