How COVID-19 could force changes to family courts, modernize access to the justice system

With the courts snarled by delays connected with COVID-19 containment efforts, traditional family law processes may be forced to change. (Cliff MacArthur/provincialcourt.bc.ca)

Physical distancing and isolation measures may force family court system to change for the better

With courts closed across the country, separated and divorced couples are facing the prospect of not having access to a judge for what could be months.

The courts have made exceptions for urgent cases, but these are mostly limited to child abductions, restraining orders and child abuse cases. That means child and spousal support claims, hearings regarding access and custody of children, and claims for the sale and division of matrimonial property will likely not get any court time until alternative processes are created.

As a result, some are worried about trials that may be delayed into next year. This not only increases the legal costs, it also leaves families with no court resolution on pressing issues, like child and spousal support, and parenting schedules that are not considered urgent by the courts at this time.

These delays will disproportionately affect financially vulnerable populations.

We expect there to be a rise in support claims due to mass layoffs from the pandemic. Also, a payment from the division of family assets becomes critically important when income streams have been cut off.

On the parenting side, parents who can’t agree to a parenting schedule may be locked in conflict for months until the courts reopen, sometimes in the same home. A child who has no court-mandated access to a parent will have to wait weeks or months to see them, contrary to the best interests of that child.

However, with the courts out of the picture, family law may also be forced to change for the better.

The family law system in Canada has long been described as broken. Now, with limited relief from the courts available, separated and divorced couples (and their lawyers) can either choose to remain in limbo, or they can turn to alternative models of dispute resolution.

Moreover, the courts are now being forced to change their processes, making them more streamlined and efficient. The net effect could be a better justice system.

Some families with cases before the courts are worried about the prospect of lengthy delays due to COVID-19 containment efforts. (Shutterstock / Tero Vesalainen)

Alternative dispute resolution processes, like mediation, arbitration and collaborative family law, have been created and refined over the past few decades and do not require the use of the courts. With advances in technology, parties can effectively resolve their family law dispute online.

Through online dispute resolution, the parties to a conflict can live anywhere in the world, and securely and conveniently mediate or arbitrate their dispute without ever having to meet in person.

In an online mediation, the separated couple, their lawyers, and the mediator use a shared video conference platform to negotiate, facilitate and resolve disputes. The mediator can jump between rooms with the click of button.

Arbitration involves hiring a private judge to make a decision when there is a dispute. In online arbitration, the parties use video conferencing for arguments and cross examination, and documents can be exchanged via cloud-based servers.

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Source: Marcus Sixta | CBC News Opinion