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

This column is an opinion by Marcus Sixta, a family lawyer, mediator, and founder of Crossroads Law, a family law firm operating in British Columbia and Alberta. For more information about CBC's Opinion section, please see the FAQ.

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.

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.

Collaborative divorce is a process in which the separated couple signs an agreement that they will not use the court system, and instead agree to work as a team with their lawyers to resolve their family law matter outside of court. The focus is on a solution that is fair and in the best interests of the family, rather than on winning. This process is also well-suited for online dispute resolution, as video conferencing can be used for discussion and settlement meetings.

Many family lawyers now recognize the damage that can be done to families by protracted litigation through the courts. The adversarial court system does not encourage the type of cooperation that is required when raising a child after separation. Working in harmony with an ex-spouse becomes more difficult after fighting with them in court for two years and spending $200,000 on legal fees.

Unfortunately, the court system is still clogged up with many family law matters that could be resolved out of court using alternative processes. This is because many litigants engage with the court system unaware of the other options, or because they are too entrenched in their conflict to attempt to work together to settle disputes. But now, as a result of the closure of the courts and physical distancing, the majority of separated couples will be forced to choose between alternative dispute resolution processes or nothing.

This could change the way that many engage with the justice system, reserving court for urgent matters. Courts should also be educating the public about alternative dispute resolution during this time, as the Court of Queen's Bench of Alberta did on March 31, in addition to making changes to outdated processes to improve access to justice.

The Canadian justice system is very slow to adapt and change. For example, many courts, like those in Calgary, have only allowed applications to be filed in person with limited exceptions. Court appearances are usually restricted to in-person applications, especially where a witness is giving evidence. This is limiting for those in remote communities or people with mobility issues. Documents must also be commissioned and notarized in person, again restricting access to justice for many.

This is not the way it has to be:

• In Alaska, prior to COVID-19, courts routinely allow litigants to be sworn in and give evidence over the phone.
• In New Mexico, a law was passed several years ago which removed the requirement that court documents, such as affidavits, be notarized or commissioned in person. Now all that is required is a statement that the factual assertions are made under penalty of perjury.
• Since 2016, New York State has allowed some restraining-order court hearings for domestic
  violence cases to be heard by way of video conference.

Moreover, many U.S. states have sophisticated systems allowing all court documents to be filled out and filed online.

As a result of COVID-19, Canadian courts are now having to rapidly update their own procedures to allow for more remote access and online processes. For example, the B.C. Supreme Court has recently changed the rules around notarizing affidavits to allow for them to be sworn by way of video conference when someone is quarantined or self-isolating. On March 23, the Alberta Court of Queen's Bench announced the creation of an enhanced email filing system for all court centres in Alberta.

The longer that physical distancing is necessary, the more the courts will be forced to evolve, increasing options for remote hearings and streamlining many outdated processes.

These changes, long used in other jurisdictions, should be permitted to continue after our country has recovered from this pandemic.

Although temporarily closing the courts may be a tough pill to swallow, the justice system will be forced to make long overdue changes that could unclog the courts of needless divorce litigation, modernize court procedures though technology, and change the mindset of divorcing couples. This would be a positive development for family law and access to justice in general.

• This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.