The federal government delayed implementing the Amendments to the Divorce Act until March 1, 2021 in response to COVID-19. However, reviewing the case law from the pandemic period indicates that the new duties expected of parties under these Amendments may already practically be in force as a result of the Court’s heightened COVID-19 behaviour expectations.
This is particularly evident when looking at the Court’s distaste for aggressive litigation and unilateral action during the pandemic which mirrors the new duties to try and resolve matters through a “family dispute resolution process” (section 7.3) and comply with orders (section 7.6).
The expectation that parties will behave reasonably and try to resolve their own problems before turning to Court was kick started by the first pandemic cases. Ribeiro v Wright, the seminal COVID-19 parenting decision, lays out a test for parenting dispute resolution that revolves around communication and parental problem solving. In other cases, the Court told parties to “[g]o home and be more sensible” and “[t]ry harder” to get along. Masden J. went as far as including the name and phone number of an offsite mediation service in some decisions.
Ribeiro v Wright also made it clear that parties are expected to follow existing Court orders during the COVID-19 period. This principle echoes throughout the subsequent case law as the Court remains clear that it cannot not condone unilateral action.
As neatly summarized by Pazaratz J.: “Needlessly aggressive or opportunistic litigation has never been an impressive strategy in family court. And in COVID-19 times it is simply unacceptable.” The Court shifted the burden of de-escalation and problem solving to parties by demonstrating a lower tolerance for aggressive litigation, gamesmanship, or self-help. The Court needed to conserve its limited resources for the most urgent matters when it was forced to literally close its doors. These expectations line up with the new duties found in the Amendments which makes sense since the Amendments were designed to respond to deficiencies in the family court system. COVID-19 only served to highlight these problems.
It remains unclear how much the COVID-19 case law will inform the content of these new duties once the Amendments officially come into force. COVID-19 jurisprudence may be seen as the exception to the rule or the pandemic cases may help inform how Courts should interpret the new provisions. It may depend on how the Court recovers from the COVID-19 restrictions however, we already know that there will be a significant backlog of cases and a push towards alternative dispute resolution in response.
In any event, parties contemplating going to Court should be prepared to answer to a higher standard of behaviour moving forward.
Those looking for more information about trends in the COVID-19 family case law should consult our comprehensive Guide to the Ontario Family COVID-19 Case Law. This document provides an annotated summary of all major court findings.