Can I get divorced during the COVID-19 pandemic and more burning family law questions

Special to the National Post

The COVID-19 pandemic has forced couples and families into close quarters, disrupting routines and, in the case of some separated spouses, custody arrangements. Here are some of the questions people are asking as a result.

Can I get divorced during the pandemic?

Familiarity breeds contempt. It’s an old truism that appears to have been borne out in China, which reportedly saw an unprecedented rise in divorce filings after government offices reopened following the quarantine imposed in parts of the country. Chinese officials claimed the reason was that couples had spent “too much time together.”

While lock-down measures imposed in Canada are not as strict as those in China, there are still undoubtedly many couples feeling the strain of spending additional time together. Some may even be wondering if they can jump-start the divorce process before social distancing measures end.

The answer is “not really.”

There are several steps required to finalize a “simple” divorce — a court application which makes a claim only for a divorce and not for other relief such as child support, spousal support or claims against property.

In the ordinary course, simple divorces are processed without having to appear personally in court. The usual process takes about 3 or 4 months, depending on how busy the judges are at a particular courthouse.

While electronic filing of a joint or uncontested divorce application is possible in Ontario, at this point, the Superior Court of Justice — the only court in Ontario which can grant a divorce — is able only to accept the filed documents, and cannot undertake any of the further steps needed to finalize a divorce order.

The Court clerk confirmed as much by email on April 9, saying that “at this time … clients (will) have to wait until we resume normal operations.”

Given the backlog of cases of all kinds being generated during the shutdown, it is not at all clear whether the simple divorce applications that are being filed electronically will be given priority when the normal operation of the court resume.

That means it could be a lengthy wait: Anyone who was hoping to finalize a divorce in time to remarry this summer or even later this year may have to put their plans on hold.

Ontario courts are closed to all but “urgent” matters and some conflictual separated parents are using this as justification to refuse to send children to the other parent’s home for their regularly scheduled parenting time.

One of Ontario’s most blunt-spoken family judges, Justice Alex Pazaratz, recently ruled on an urgent matter in just such a case, laying out the logic of the court in dealing with conflicts in the COVID era.

“In most situations, there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are being adhered to — including strict social distancing,” the judge said in his ruling. “In some cases … parents may have to forego their time with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14-day period as a result of recent travel, personal illness or exposure to illness).”

But there were also more serious situations, the judge said, in which a parent’s behaviour or lifestyle might lead to situations that put a child at risk, and necessitate sterner decisions from the court, included barring such parents from seeing their children altogether.

“There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk,” he said.

What kinds of urgent cases are the courts hearing?

In Ontario, Under the Ontario Superior Court of Justice urgent protocol, what is being heard depends on which of the eight judicial regions the litigant is in. Some jurisdictions have greater capacity than others, and litigants have been advised to check their region’s notices. Urgent matters in Toronto are tightly circumscribed.

The Senior Family Law Justice for Ontario, Justice Suzanne Stevenson, said that child welfare matters  and parenting issues have been the most prevalent applications so far, but the court is expecting an influx of applications for restraining orders against spouses as well as for exclusive possession of the home.

In order for a financial issue to meet the test of urgency, the circumstances must be “dire.”

Where is more information available?

The Law Society of Ontario has worked closely with the Superior Court of Justice and the family law bar to staff and develop an emergency hotline for those people who are currently unable to get legal advice from the Family Law Information Centres which operate within Ontario’s court houses.

If you don’t have a lawyer, don’t know if your matter is urgent or don’t know the steps to take if your matter is urgent, the Law Society and the family bar in Ontario are providing 30 minutes of free legal advice and information on these issues. You can speak to a family lawyer by calling the free hotline number at 416-947-3310 or 1-800-268-7568.

This article originally appeared in the National Post.