According to the CBC, as of October 14, 2020, Ontario’s 7-day average for new COVID-19 cases is over 740. While no one really seems to know exactly what this means, it seems clear that the current pandemic is going to be something that we are going to continue to live with for the time being.
Back in May, I wrote a blog titled “What Family Lawyers Can Still Do (And What We Can Do That We Couldn’t Do Before)”. My purpose was to provide something of an overview of the ways in which my family law colleagues and I were adapting such as using Zoom conferences, electronically commissioning documents, and having teleconferences with the Court in lieu of live appearances. My takeaway was that family law was “open for business”, and as far as family lawyers were concerned, that was, and is, true.
The Courts, however, were substantially impacted by COVID; in London, all non-urgent matters were adjourned, first to June and then to July and finally to September and October. While the judges and staff made admirable efforts to keep justice flowing, for example by hearing urgent matters by Zoom and teleconference and setting up conferences to keep matters moving forward, the reality is that many issues that were very important to the people affected by them, including cases involving children’s schooling, relocations and the disposition of properties, often could not get heard.
The family bar adjusted. For me personally, this involved, among other things, an increased emphasis in my practice on using alternative dispute resolution, primarily mediation and arbitration. Indeed, in the past several months, more of my clients’ matters have been arbitrated than in the past several years. An arbitrator is usually a family lawyer – and in some cases a former judge – who acts as a hired decision-maker when two parties cannot agree on an issue which falls under the ambit of a “family law matter”. Arbitrators are experts, and their expertise has led to a resolution of many cases which are urgent to the parties, despite not meeting the definition of “urgency” as set out by the Courts. Arbitrators have kept things moving.
The Courts, for their part, have not been standing still. In London, we are now, for the first time since March, able to schedule some non-urgent family motions. These are heard remotely, by Zoom or teleconference. And, as of the time I am writing this, there are only five slots available each week, which falls well short of the demand. But still, this is tangible progress.
Trials are being planned – at least tentatively – for 2021. I have been able to place a number of my clients’ matters on the assignment court list for March 2021, where a judge will – at least in theory, and doubtless dependent on the state of the pandemic at the time – put the cases to a trial sittings, where the matters may at long last be resolved on a final basis.
In short, family law continues to find its way through the pandemic, and justice continues to be done, albeit at a slower than usual pace.
It is impossible to know what will happen next. Recent experience has taught all of us to expect the unexpected. No one has a crystal ball, and I don’t claim to be able to predict the future of family law.
But I can see what is happening now, and it is a collection of people moving forward together in the same direction. It is family lawyers and staff working hard for their clients from home. It is judges and court staff tirelessly working their way through the backlog created by the shutdown. It is arbitrators and mediators expanding their services and taking on a more central place in the practice of family law. And above all it is people we all serve: the former spouses, the worried parents and the impacted workers, working with all of us to keep their families, which have been impacted by separation, divorce, split families and, yes, COVID-19, as organized, financially secure and stress-free as possible.
We are in this for the long-haul and we are in this together. I don’t need a crystal ball to predict that this shared sense of purpose, at least, won’t change.