Canadian Lawyer

July/August 2020

The most widely read magazine for Canadian lawyers

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4 UPFRONT FAMILY LAW BEFORE COVID-19 ever entered our collective vocabulary, family law litigants struggled to get help in what many described as an access-to-justice crisis. Now that access-to-justice crisis is colliding with a public health crisis: the COVID-19 pandemic. For example, says lawyer Sharon McKim- Ryan, since supervised access often occurs in a public place with a social worker, some parents may not have even seen their chil- dren during the pandemic. "Some parents have agreed that it would be best for the children to remain in one household during the pandemic," says McKim-Ryan of Relationshift Family Law in St. John's, NL. "Some parents who are front- line workers have made the difficult decision to place their children with grandparents." These decisions, of course, were being made with courts in various states of closure — but they nonetheless generated what Ontario law firm owner Vanessa Lam calls an "explosion" of case law related specifically to family struggles during lockdown. Over the past decade, family law already represented about half of all civil court events, according to research compiled by the Canadian government. As courts reopen, McKim-Ryan says, there's likely to be an increase in applications to vary child support, with many parents out of work, and there could also be an increase in applica- tions to vary parenting plans, if parents have moved to different working schedules. "Not only will courts have to reschedule all of the matters which were cancelled, courts will also have to process new applications," says McKim-Ryan. "Prior to the pandemic, the courts were overburdened. This is only going to be exacerbated." Unfortunately, while the courts begin to re-open, many families' economic struggles remain: The International Monetary Fund suggested in April that "the global economy will experience its worst recession since the Great Depression." Before the pandemic, inability to pay was already the leading cause of self-representa- tion in family law, according to Canadian Forum on Civil Justice. If more families are litigating and there is less money to go around, they may choose to cut costs by representing themselves, lawyers say — espe- cially if the jurisdiction lacks lower-cost options such as unbundled legal services, paralegals or unified family court. Zoom decreased costs — no more five- hour drives to and from Vancouver, no more waiting in the courthouse for hours for a complex chambers meeting, says Cristen Gleeson, a partner practising through a law corporation at Baker Newby LLP in Chilli- wack, B.C. On the other hand, an increase in self-represented clients could have the opposite effect, says Gleeson, who says she has been on cases where trials dragged on from three to six weeks as the courts helped self-represented litigants. "It's just extremely insurmountable for the other party who has a lawyer, because the legal bill is very high," says Gleeson. Add in "Not only will courts have to reschedule all of the matters which were cancelled, courts will also have to process new applications." Sharon McKim-Ryan, Relationshift Family Law Crises collide A wave of domestic violence, divorce and custody cases comes as court backlogs rise — but in a sinking economy, few can afford family lawyers, writes Anita Balakrishnan

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