Aftershocks: COVID-19 and the “new normal” for family lawyers - LawNow Magazine

Aftershocks: COVID-19 and the “new normal” for family lawyers

Photo by Engin Akyurt from Pixabay

When the world feels like it is off its axis and everything is changing at an unprecedented pace, sometimes it helps to remember what has NOT changed as we grapple with what has. Things that have not changed:

  1. Families continue to require compassionate and thorough assistance to get their lives in order following a separation.
  2. Technology continues to be both the bane of our existence and our saviour.
  3. Access to justice continues to be a challenge.
  4. The mundane remains mundane. We still calculate guideline incomes the same way. We continue to require the same financial disclosure we always have. We continue to draft thorough and detailed Agreements, Affidavits and other materials. We do our best to tackle our inboxes and voicemails in as timely a fashion as we can. The list goes on. None of this changes whether we are working in the office or remotely, whether we are meeting with clients in person or via video-conferencing, nor whether we are working with children underfoot or accessing childcare.

That being said, my practice has changed considerably. Initially my workload decreased – overnight my calendar all but emptied. The courts understandably took time to grapple with the practical and technological challenges that the pandemic posed for their operations. Some clients themselves required some time to find their “new normal.” There were many short-term changes, new policies and new procedures. However, the practice now seems to be finding its “new normal” too, and so I wish to highlight some of the lasting (or hopefully lasting) changes to the practice and at the Alberta Court of Queen’s Bench.

Family Docket

Due to the pandemic, for the first time the Court has publicly referred families to an online “mini arbitration” app called coParenter.The Court of Queen’s Bench took the “pause” necessitated by the pandemic to introduce Family Docket. This is a new procedure and a mandatory pre-requisite to nearly all other types of procedures. It allows families to get their foot in the door without first needing to start proceedings. The judge spends a few minutes on each case to understand what the major issues are, offer procedural direction, and attempt to shepherd the file towards the lowest-conflict avenue available. It is conducted online via Webex. We can view it as yet another thing we have to do before we can get to the type of hearing we want. However, I am seeing the benefit for clients of being able to go to Court without having to file a Statement of Claim, Family Law Claim or Application in order to get the advice and direction of a learned justice. As well, at Docket, clients can access further and more substantial non-litigation avenues that the Court offers (such as Judicial Dispute Resolution and Early Intervention Case Conferencing).

Desk Consent Orders, Simple Written Applications and Written Disclosure Applications

While it has always been possible to get consent orders granted via desk process, the Court has streamlined and publicized this process to make it simpler and more readily accessible. Further, “short and sweet” matters – such as routine disclosure Applications and basic child support calculation matters – can now be submitted and “heard” entirely through written evidence and arguments. This can save considerable time for everyone involved when used effectively.

Electronic Filing

Although not a fancy online interface, the Court of Queen’s Bench is now accepting materials for filing from lawyers via email. This is saving clients time and money, and is saving my back and feet from the lines at the courthouse.

Arbitration

The Court of Queen’s Bench took the “pause” necessitated by the pandemic to introduce Family Docket.Arbitration is not a new option, but it has certainly been more widely used and discussed (at least in Edmonton) since the pandemic began. I am aware that arbitration has been more widely used in Calgary for years now. The Court, for the first time, publicly referred litigants to the availability of this option. I have had many judges suggest and endorse family-law oriented technology, such as Our Family Wizard, to clients over the years. Due to the pandemic, for the first time the Court has publicly referred families to an online “mini arbitration” app called coParenter. I recently had a justice suggest it in open court.

Video-Conferenced Negotiation Meetings, Case Conferences and other Dispute Resolution Procedures

This, for me, has been the most significant shift. I have often noticed over the years that parties in family matters communicate in-person through non-verbal cues. This becomes problematic when entire negotiation meetings fall apart because one party grins or winks at the other at a knowing moment. In other words – separated spouses can and do push one another’s buttons without needing to lift a finger or open their mouth. However, I have observed that this does not seem to occur in the same way via remote platforms. On these platforms it becomes difficult for more than one person to speak at a time – and so all participants are forced to speak in turn. Further, unlike a meeting in-person, the interactions feel somewhat artificial, or awkward. The result I have observed is that the meeting cannot function practically if someone is being belligerent. As a result, those who might have problematic tendencies tend to reign it in, at least somewhat.

During the early weeks and months of the pandemic lock-down, litigation options were significantly altered or curtailed. Some parties were therefore more willing to try these other dispute resolution options. In other words, where they were unable to simply “leave it up to the judge,” they willingly participated in remote resolution procedures. My observations arising from these procedures has been a nearly 100% success rate of settling the file on a complete or interim basis. This is substantially higher than what I observed from similar in-person procedures prior to the pandemic. As such, I see benefit to parties in keeping some of these meetings happening remotely, rather than in-person, on a permanent basis – at least in family matters where emotions and inter-personal history tend to play a key role in the success of such procedures.

Client Comfort with Using Remote Technology

… the Court of Queen’s Bench is now accepting materials for filing from lawyers via email.At the outset of the lockdown clients seemed reluctant to do everything remotely. However, even clients who were initially reluctant have gradually come on-board with providing their financial disclosure electronically, conducting meetings by phone or video-conferencing, and downloading apps in order to attend court remotely. There will always be technological difficulties and problems along the way, but I have observed a greater willingness to tackle them rather than avoid them.

Legislative Changes

There have been Ministerial Orders, procedural or Rules changes, notices from the Court, and other legislative changes that have (among other things):

  1. Clarified the rules and procedures for the remote commissioning and signing of documents such as Affidavits
  2. Clarified the rules and procedures for verifying identity using remote technology
  3. Added Family Docket, reduced the availability of judicial case management, implemented the above procedural or administrative changes, etc.
  4. Temporarily postponed limitation periods, filing deadlines and other timelines
  5. Delayed the implementation of the new federal Divorce Act.

This last change has helped to reduce the number of changes that the Court, lawyers and litigants are trying to grapple with simultaneously. Although I will admit to breathing a sigh of relief when this occurred, the new provisions for the Divorce Act are exciting and long overdue. Canadians will have to wait a little longer to benefit from them. Undoubtedly this was the right decision, but it remains an unfortunate delay and side effect of this pandemic.

Uncertainty

At the outset of the lockdown clients seemed reluctant to do everything remotely. Finally, I suspect that I could speak for many in the profession when I say that I have had to get used to being unable to give my clients as certain or concrete advice as I used to give – particularly about procedural issues (as opposed to substantive issues). My advice was once: “We can bring this application and we’ll likely have a decision in regular family chambers on an interim or partial basis by [certain date].” My advice is now: “It is likely that I can get you this relief that you are seeking, but we will first go to Family Docket, and then be referred to an appropriate type of hearing to address this issue directly, and I cannot say exactly when that will occur.” This is an improvement on my advice given during the first part of the lockdown, which for some matters was: “You are correct to want to seek that relief, but I am not sure when I will be able to initiate that type of proceeding.”

In other words, lawyers are used to working in a field where changes are gradual, or where significant notice and consultation is given in advance. The pandemic has forced rapid changes and with limited notice and consultation. This is not to “blame” the Court, the Legislature, Parliament or any other entity. It has simply been foisted upon us all by the pandemic itself. We have had to learn to adapt, and a big part of that has been learning to accept an increased level of uncertainty in our practices and in our legal advice, at least until we all get used to the “new normal.”

Authors:

Erika Hagen
Erika Hagen
Erika Hagen is a partner at Crerar Badejo Hagen Family Law Group in Edmonton. Erika practices exclusively in the area of family law and is on the Board of Directors for CPLEA.
 


A Publication of CPLEA

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