Is Family Law Still Functioning in the Pandemic? Top 3 Tips from a Canadian Family Lawyer on Resolving Family Law Issues Notwithstanding the Public Health Crisis

Lawyers are supposed to know a lot of words. Some might say we are all words (plus occasionally a lot of hot air). But I nonetheless needed to do some online digging to discover that Gideon Harvey explained as far back as 1675 in The disease of London that “Epidemick” and “Pandemick” were different things, though back then both were only used as adjectives rather than nouns. 

Now that we all know just how severely a pandemic can affect the functioning of society, where does that leave us with family law? If law is the glue that holds society together - sometimes more firmly than at other times - what are those with family law issues supposed to do with lawyers working from home and courts greatly limiting physical access? 

The good news is that “the law” itself is not at all affected by disease, other than in being progressively modified to meet the needs of its users. In a shockingly quick way. Where there have been calls for decades for the justice system to do much more with electronic rather than paper records, and  by way of virtual rather than physical presence, it’s taken a pandemic to essentially accomplish in two weeks what couldn’t be done in two decades. 

So what are those needing to use the family law system supposed to do in these exceptional times? What kinds of legal results can they expect, and are there any workarounds? 

Here’s my take on pandemic crashing into family law, as a family lawyer practicing in Ontario. Effects and solutions may be different elsewhere. Though I'm reassured from reading the very detailed “The Remote Access Family Court” just released today by Mr. Justice MacDonald of the United Kingdom’s Courts and Tribunals Judiciary that all courts, lawyers and litigants are facing similar issues, and working furiously (and surprisingly efficiently) to change legislation, implement technology, and simply be creative to solve the problems presented by the interruption of a largely in-person and on paper legal system that has persisted unchanged for centuries. 

1. YOU CAN STILL NEGOTIATE A LEGALLY BINDING FAMILY LAW AGREEMENT

The cheapest and most effective way to solve family law problems has always been through negotiations rather than going to court. As a lawyer who mainly deals with high conflict, transnational and appellate family disputes, I know as well as anyone that negotiation has its limits when one or both parties dig in on particular positions. 

But since lawyers are still out there practicing - they just might be doing so from home or virtually from their existing offices - there is nothing stopping clients from contacting them to work things out with the other side of family transitions. Separation agreements and other forms of family contracts were already being largely drafted through cloud based software. Lawyers and self-reps were already negotiating resolutions by phone, video or email rather than in person. 

So there’s nothing stopping you from creating lasting family law settlements, including exchanging financial disclosure, despite the recent extraordinary events. Reach out to a lawyer if you need one. With the cancellation of all trial dates (at least in Ontario), you might find family lawyers easier to get hold of than usual. Or apply to legal aid if you can’t afford a lawyer, applications are still being taken, and legal aid is still operating in a remote way.

2. YOU CAN STILL SEEK EMERGENCY FAMILY LAW RELIEF FROM THE COURTS

Depending on where you are, many courthouses remain operating, because of how essential they are to the ongoing orderly functioning of society. While civil disputes in courthouses may have temporarily dropped off the map, and criminal cases might only be treading water other than for bail hearings, courts are definitely still hearing urgent family and child protection matters, thought that may be through video or teleconference means.

The challenges right now for anyone with a family law problem needing court intervention is demonstrating to the court that your matter truly is “urgent.” There’s no ideal definition out there of “urgency.” A lot rests on how your pitch your matter, and the discretion of the courts. 

But submitting an urgent case because of child abduction, dissipation of family assets, complete denial of access, or complete destitution leading to being unable to support yourself or your children might still be heard. Judges are still working. Court clerks are still processing cases. A lot just comes down to inherent inefficiencies because of a system that was still based on paper all of a sudden being catapulted into the 21st century, without the hardware, software, training, and protocols already being in place to deal with that. 

Urgent cases can be filed by email to the courts, with documents being served on other parties by email. But rules on such service and filing are evolving every day. Contact your lawyer or if you are self-represented in Ontario you can call a brand new (as of today) Law Society Emergency Family Referral Line during business hours at 1-800-268-7568 for assistance. 

3. FAMILY COURTS ARE STILL HOLDING HEARINGS BY VIDEO AND TELECONFERENCE

Family court judges are all still out there wanting to help you with your problems. That’s their job. The problem is that they are used to seeing litigants and lawyers in person. And all their files are on paper, locked away in courthouses. 

But judges and their courts are adapting. Zoom and Skype for Business seem to currently be the preferred means of holding virtual video family court hearings. And even teleconference can work for more procedural types of applications that involve legal argument rather than live witnesses. 

Once we emerge from the health crisis, I predict there may be no going back to the Charles Dickens Victorian courts practices of paper and people all jammed together in one room competing for a single judge’s attention. I’d certainly not be in favour of an (electronic) paper only process, even for technical cases only involving affidavits. Everyone needs her or his day in court, and the process of dialogue between judges and the parties appearing before them is vital to ensure that all questions a court might have about evidence and submissions are answered prior to final judgment being rendered. But there is not reason a complete dialogue can’t be had by virtual means, and the courts appear to be moving rapidly to provide that.

Gordon Scott Campbell practices trial and appellate family law throughout Ontario. Learn more at www.nofearfamilylaw.com