Those of us who were practising family law in 1982 will recognize this moment — the moment of quiet before the tsunami hits. The phones have stopped ringing, the mail has dried up and suddenly our calendars are empty. But do not misinterpret the signs; in a few short weeks the tsunami will arrive. What can we expect?
Do I stay or do I go?
It is commonly believed that recessions result in more
separations. Certainly the added stress caused by financial
meltdowns can be the tipping point in already fragile
relationships. However, the decision to separate is usually more
complicated than that.
For every person who decides to leave because "things
can't get any worse," there are others who prefer the
devil they know over the devil they don't. For many, separation
is not a realistic option because they lack the financial,
emotional or social resources to walk away from an unhappy
situation. Throw in the prospect of conflict over the usual family
law issues (custody of and access to children, division of
property, support, etc.) and many will remain paralyzed with
indecision.
Parenting issues
More important than money to many is what is will happen to the
kids. Although the labels have changed (custody is now primary
residence and access is now parenting time), the issues remain the
same. The current situation of quarantines and social distancing
creates additional opportunities for conflict.
Parties with whom the children have primary residence will argue
that the other spouse's access to the children should be
suspended to comply with government advisories and to avoid
unnecessary risks to the children's health. Parties who already
have parenting agreements or orders will no doubt argue that the
current situation constitutes a material change in circumstances
justifying a variation.
Property problems
The stock market meltdown and the closing of businesses will
pose particular problems for those looking to divide property as a
result of marriage breakdown. Equalization under
the Family Law Act is determined based on the
value of each party's assets and debts on the date of
separation (the valuation date). When an asset (shares in the
company, a business, a home) declines in value as of the valuation
date, the titled spouse is still required to equalize its value as
of the date notwithstanding its subsequent decline in value.
While the court does have the power to make an unequal division of
net family property, that power is limited to circumstances in
which an equal division would be "unconscionable" (a
standard that courts are very reluctant to find). On the other
hand, property owners may find the current economic environment is
a good time to initiate a separation (on the theory that he or she
will be able to get the benefit of a low equalization payment even
after the value of his or her asset has recovered).
Variation of support
This tsunami will hit with the greatest force in the area of
support. Most separation agreements and court orders provide that
child and spousal support provisions can be varied by either party
in the event of a material change in circumstances (which can
include a significant change in a party's income, loss of
employment, business insolvency, etc.). It is foreseeable that
virtually every support payor will seek a reduction in the support
that he or she is paying and that every support recipient will seek
to minimize that reduction.
In those cases where the agreement or order provides for
non-variable support except where there has been a
"catastrophic change in circumstances," the parties will
predictably disagree as to whether or not the change has been
"catastrophic." The wave of variation cases will likely
take years to resolve.
How do we resolve disputes when there are no courts?
The Ontario courts that typically resolve family law disputes
are closed for the foreseeable future. So how are these issues to
be resolved? Luckily, family law professionals have, over the past
20 years, developed a wide range of dispute resolution alternatives
including mediation, arbitration, parenting co-ordination and
collaborative practice. Each model has its own advantages and
disadvantages and not every model is suitable for every case.
However, at least one of these models will provide a practical
alternative for dispute resolution in a world without courts.
Information about these alternatives can be found through the
following websites: Family Dispute Resolution Institute of Ontario
(FDRIO.ca); Family Mediation Canada (FMC.ca); Ontario Association
for Family Mediation (OAFM.ON.ca); and Ontario Association of
Collaborative Professionals (OACP.CO).
This article was originally published by The Lawyer's Daily, part of LexisNexis Canada Inc.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.