Failed love in time of COVID-19: Pandemic and family law
Monday, May 04, 2020 @ 3:18 PM | By Carol Shirtliff-Hinds
The majority of countries have taken steps to control the spread of the virus by instituting a quarantine in the form of social distancing and self-isolation. Interestingly, the term “quarantine” is derived from quarantino, the 14th- to 15th-century Venetian Italian word, and refers to the 40 days that ships had to be isolated before their passengers or crew were allowed on shore during the period of the Black Death epidemic.
Fast forward to today. We are now facing a COVID-19 pandemic where we find ourselves using the same quarantine techniques that were used in the 14th and 15th centuries. At the most basic level, the way to prevent disease transmission remains the same, irrespective of how far we have advanced as a society.
COVID-19 impact on families
The impact on families owing to COVID-19 has been devastating. As schools and universities shut down, children have all returned home. Parents who once worked outside the home are now, for the most part working from home, assuming that their job was not one of the jobs designated as essential. This has put a huge strain on the family unit. The increased stress and anxiety of social distancing, paired with forced physical closeness within a family, has unfortunately led to an increase in family violence.
The United Nations has called for measures to address the “horrifying global surge in domestic violence” linked to COVID-19 lockdowns. Teachers were traditionally the first to sound the alarm in child abuse cases, however, as children are no longer in school, this protective front line is no longer available.
Furthermore, court orders dictating custody and access arrangements are being severely tested as families battle over which parent is taking the social distancing guidelines seriously. Some parents have resorted to self-help and refused to allow the non-custodial parent access to the child in their belief that it is in the best interests of the child to stay home. In some cases, this is a genuine fear; in other cases, it may be a tactic by the custodial parent to reduce access even further to the non-custodial parent.
Prior to COVID-19, it was easier, though not easy, to access the court to mediate issues of custody and access. During COVID-19, the path is more fraught with difficulty. Given the COVID-19 lockdown, the courts are now hearing only matters they deem urgent.
Superior courts’ response to family law and COVID-19
In response to the COVID-19 epidemic, the Superior Court of Justice suspended all regular operations of the court, in a practice directive on March 17. It is to be noted that the Superior Court in Ontario’s Central East Region is also operating pursuant to this Practice Directive. Given the unpredictability of the virus, it is anyone’s guess when we will get back to business as usual. One thing that does seem clear, however, is that once we return, it will be a much changed profession.
To add to the difficulty, different Superior Court jurisdictions may have similar or different Notices to the Profession although they all appear to have adopted the first Practice Direction issued by Chief Justice Geoffrey Morawetz dated March 15. For instance, the Superior Court of Justice — Toronto, distributed an Amended Notice to the Profession that was effective as of April 6 (Amended Practice Direction).
In this Amended Practice Direction, urgent matters would continue to be heard as outlined in the first notice. Further matters were added to the list of urgent and additional family matters such as the failure to comply with existing court orders and parenting plans, issues regarding support and Children’s Aid Society appeals.
As of the time of writing, the Superior Court — Central East Region also distributed an Amended Notice to the Profession effective as of April 17 to address the expansion of services in family law matters in their courts.
It is interesting to review what is presently considered not urgent by the courts and the impact that it has on our society. The Superior Court of Justice, which is the only court that can grant a divorce, is not presently dealing with divorces.
Anyone therefore who has planned a wedding for this summer or even later in the year on the assumption that they will be legally free to enter into their second lawful union will be greatly disappointed. No wedding bells for you!
Given the accumulating backlog of non-urgent matters it is anyone’s guess when an application for a divorce will be granted. This delay will no doubt increase the stress and anxiety level for the potential newlyweds at a time that is already stressful.
Parties who are seeking their share of the proceeds of sale that are held in trust from a matrimonial property will not be able to meet the high threshold of urgency. Not being able to access funds can have a dire impact on the financial circumstances of a party. It is recommended that any party who wishes to attempt to bring a motion based on financial need should present strong evidence regarding the nature of their income pre- and during COVID-19, their total income from all sources and the extent of their present resources in order to scale the urgency hurdle.
Parenting time will also not be found to be urgent. A custodial parent denying an access parent their right to see a child has been deemed not an urgent matter (see Douglas v. Douglas endorsement by Justice Wendy L. MacPherson). The family law courts are struggling to balance urgent matters while weeding out those that do not need immediate redress.
To see examples of the type of cases deemed not urgent, click here. (To see Zee v. Quon endorsement by Justice E. Llana Nakonechny, referred to in table, click here.)
The examples in these cases show the increased pressure on the family. An access parent denied any time with his/her child cannot be in the best interests of the child. Duelling parents who cannot set aside their differences for the best interest of the child will no doubt face the consequences of their decision in a number of ways; either by the denunciation of the court when the matter is finally dealt with or by the children themselves who may rebel later in life given the emotional impact of the unreasonable decision of the parent.
The scars left by COVID-19 will have an impact not only on those infected with the virus but also on those affected by COVID policies.
This is part one of a three-part series. Part two: Failed love in time of COVID-19: What is urgent?; part three: Failed love in time of COVID-19: Urgent cases and best interest of child(ren).
Carol Shirtliff-Hinds is founder and managing partner of Shirtliff-Hinds Law, a full-service boutique law firm in Newmarket, Ont. She practises family law and criminal Law. E-mail her at email@example.com.
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