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The pandemic has changed all aspects of our lives. Many families are reporting significant increases in stress due to social isolation, confinement, financial trouble and lack of familiar resources.

For many, any weaknesses in spousal relationships have been tested to the limits resulting in an increase in those considering separation and divorce. Just as COVID-19 as impacted our homes, it has also impacted the courts systems leaving many people wondering how they should proceed.   

Can I still proceed with, or initiate a divorce during COVID-19? 

  • Yes.  But, as part of COVID-19 safety precautions, the Family Courts are only hearing emergency cases where family members are potentially in danger. That said, court is not the only option, and in many cases, not the best option to resolve your case.  Family disputes can move forward via the following processes:
    • Mediation: Mediation is the process of negotiation with the assistance of a neutral third party, and is often the first step in moving towards a solution. The goal is to help you both compromise, understand each other’s position, and eventually reach an agreement. If an agreement cannot be reached, there is the option for legal action such as arbitration or court proceedings.
    • Collaborative Family Law:  Different from mediation, collaborative family law (also known as collaborative practice) matches each separating partner with a specially trained lawyer.  You all cooperate to resolve your legal issues outside of a courtroom in a safe, neutral space.  When you start, separating partners must sign a participation agreement to exchange information fully and to seek a solution that works for the entire family. You also agree not to go to court. You and your separating partner have control of the agenda. Your collaborative team guides you with their experience and knowledge to help you come up with creative options and a binding agreement based on your priorities.

      For many, any weaknesses in spousal relationships have been tested to the limits resulting in an increase in those considering separation and divorce.
    • Arbitration: Arbitration is an alternative to the traditional court process. At the end, separating couples will have a binding decision made by a third-party arbitrator, an impartial individual who has specific expertise in family law. This person sits in place of a judge. The actual arbitration process is similar to what happens in court, although often can be much less formal and user friendly. Evidence is given and witnesses may testify. The difference between Arbitration and going through the court system is: it is completely private, confidential and on your schedule.  
    • Courts and litigation: Although it is often the first option that comes to mind, moving cases through the Court to be seen before a judge is actually the most time-consuming and expensive method to resolving family law disputes. This process is also the least private and can take a higher emotional toll on all parties who are involved. 

Should I wait until COVID-19 is over? 

  • From a strictly legal perspective, waiting is likely not the best option. Like many services that have been delayed, a backlog of cases is forecasted to hit the court system in the coming months as COVID-19 restrictions are lifted. Given the number of options that are available outside of the court  – including mediation, collaborative family law, and arbitration – many cases can actually be fully resolved using the legal services that are available. For cases where these alternatives to court are a good fit, resolution is often swifter and less costly for all involved parties.  
  • In fact, recent changes to the Divorce Act actually encourage exploring mediation, collaborative family law, and arbitration before bringing cases to court. 

How do I find out what is best for my situation? 

  • As each case is unique, the best way to determine what is best for you is to call a lawyer to review your options. At Nelligan Law, our Family Law team includes lawyers experienced in collaborative family law, as well mediators and arbitrators. We have the expertise to help you determine the right path for your case and to navigate possible legal roadblocks during these uncertain times.  

If you are contemplating divorce or separation, speak to a lawyer. Know your options, and choose a path that works best for you.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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