Ontario family justice in ‘lockdown’
Tuesday, April 20, 2021 @ 10:18 AM | By Claire Houston, Rachel Birnbaum, Kate Deveau and Nicholas Bala
Hearings switched from in person to remote: in-writing, by telephone, or by videoconference using technologies like Zoom. Parties were directed to send materials electronically. All of these changes took place against a societal lockdown in which families and children were forced to isolate in homes with varying levels of security and endure the psychological and financial stresses of a global health pandemic.
As part of our research into the impact of the COVID-19 pandemic on the family justice system and the families and children it serves, we analyzed all reported Ontario family law decisions heard during the initial lockdown period from March 17, 2020, to July 6, 2020. We explored different topic areas, including high conflict, family violence and self-representation.
Types of cases
The majority of cases heard during the lockdown period involved disputes over parenting. Approximately 70 per cent of the 506 cases involved only a parenting dispute, and an additional five per cent involved both a parenting dispute and an economic dispute (i.e. family property, child or spousal support). Around 20 per cent involved only economic issues.
More than half of the parenting disputes (56 per cent) involved access difficulties. In many of these cases, one parent expressed concerns over the other parent’s ability to protect the child or a child’s family member from COVID-19. Over time, case law developed underscoring the importance of maintaining parent-child relationships during the pandemic (see Ribeiro v. Wright 2020 ONSC 1829), and triaging parental attempts to limit access because of COVID-19 for “urgent” hearings (see G.J. v. B.-L.S. 2020 ONSC 3115).
What is urgent?
The question of whether a matter was sufficiently “urgent” to proceed to a hearing arose in 355 of the 506 cases (70 per cent). Most of these “triage” cases involved a parenting dispute (81 per cent of the 355 cases). In the majority of triage cases, the matter was found to be “urgent” (83 per cent). There was no clear correlation between a finding of “urgency” and the presence of other factors, such as high conflict or family violence.
There were a significant number of “high conflict” cases heard during the lockdown period. In at least 40 per cent of the 506 cases, the judge described the case as “high conflict” or used words to indicate a high level of conflict between the parties (e.g. “warfare,” “battle”). This finding is consistent with a study of the reports of family justice professionals of an increase in high conflict families and greater levels of conflict during the lockdown period (see “The pandemic and family justice in Ontario,” The Lawyer’s Daily).
Judges recognized how the stress of the pandemic could increase conflict: “This case has a long and acrimonious litigation history, which is exacerbated by these very concerning times amid the COVID-19 crisis” (Hermanus v. Laurin 2020 ONCJ 190). At the same time, judges implored parents to set aside their conflict, even if temporarily, given increased vulnerabilities of children and limited judicial resources related to the pandemic: “During these times that are difficult and unprecedented, both [parents] should ‘stop the litigation’ and move towards resolution that is in their child’s best interests” (Eden v. Eden 2020 ONSC 1991).
Allegations of family violence were made in a significant portion of lockdown cases. Intimate partner violence (IPV) allegations were present in one-quarter of the cases (121 of 506), as well as in one-quarter of the triage cases (86 of 355). These findings seem consistent with reports of family justice professionals having significant concerns about an increase in IPV during the lockdown period (See previous link: “The pandemic and family justice in Ontario”).
Allegations of child abuse or neglect were made in 13 per cent of the lockdown cases (of which three per cent were child protection cases) and 12 per cent of the triage cases (of which one per cent were child protection cases).
A majority of litigants appearing before family courts in the lockdown period had lawyers. Women were slightly more likely to be represented than men. Women were represented in 84 per cent of the cases in which representation information was available (92 per cent of total cases). Women were self-represented in 16 per cent of these cases. Men were represented in 73 per cent of cases in which representation information was available (90 per cent of cases). Men were self-represented in 27 per cent of these cases.
This low rate of self-representation during the lockdown period raises serious concerns about the difficulties faced by self-represented litigants to access the family courts during this period, especially as services such as FLICs and duty counsel were suspended or reduced. In Mohamed v. Osman 2020 ONCJ 172, Justice Stanley Sherr acknowledged that the physical closure of courthouses, triaging of cases, and stay-at-home orders created “considerable obstacles” for self-represented litigants.
Reported family cases heard during the lockdown period provide some insight into the issues facing families and children during the first wave of the COVID-19 pandemic. Parenting disputes, access interference, high levels of conflict and high rates of representation seem to mark family law disputes of this period.
As our research continues, we will examine and provide an even fuller picture of how the pandemic has impacted family justice in Ontario over the past year.
Claire Houston is an assistant professor at the Faculty of Law at Western University. Rachel Birnbaum is a professor of social work, at King’s University College at Western University. Kate Deveau is a LL.M. student at Queen’s University and worked on this project as part of her graduate work. Nicholas Bala is a professor at the faculty of law, Queen’s University. The authors wish to acknowledge support from The Law Foundation of Ontario and the Ontario Chapter of the Association of Family and Conciliation Courts for this research.
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