Canadian Lawyer

September 2020

The most widely read magazine for Canadian lawyers

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Page 37 of 51

36 LEGAL REPORT FAMILY LAW In overturning that decision, the Court of Appeal found that a "market driven decline in the value of a spouse's assets post-separa- tion may be considered as a factor in deter- mining whether an equalization of net family property is unconscionable under s. 5(6) of the Family Law Act." "We're anticipating that people will try to apply this case," says Pawlitza, since there will be several parties who separated prior to the pandemic. For Serra to apply, though, "it can't be just a temporary dip." In 2008, when the stock market fell, many portfolios suffered, "but because the market was antic- ipated to and did recover, it wasn't an escape hatch for people," she says. "There has to be a very prolonged effect on whatever the asset is before Serra can be applied, but that doesn't mean to say that a lot of people won't try." An oft-cited positive effect of the pandemic on the court system is that it has pulled it into the 21st century. "COVID-19 has been a driver of expanding access to justice," says Hannaford. Before COVID, filing a document in court, for example, involved hiring a processor who would "serve it with their hands" to a civil servant in the courthouse, who would stamp "What COVID-19 has done for family law and other areas is that it has shocked the system into the 21st century." Julie Hannaford, J K Hannaford Barristers Looming on the horizon is a return to school in the fall in a pandemic environment. "The biggest thing is if parents will agree on kids going back to school," says Simionati. If the parents have joint custody and they can't agree, "someone's going to have to make that decision," and quickly, to reserve a place for their child if desired. Likewise, the decision of whether to vacci- nate children will be pertinent in custody cases. In Tarkowski v. Lemieux, a conten- tious issue between the parents was whether to vaccinate the child. In a ruling issued in June, the judge said that the father could make final decisions over vaccination, even though the mother had sole custody. "It's interesting for custodial decisions," Simionati says. "Since we know that there will be a COVID-19 vaccine at some point," other cases may be dealt with in a similar fashion. As livelihoods suffer during the pandemic, spousal support has also become an issue. "So many people [have] been impacted economically by COVID-19, people who are paying support and suddenly find themselves on CERB [Canada Emergency Response Benefit] when their business tanks," says Hannaford. Motions to change support orders will stop up the courts, she predicts. "That will be the flavour of the month for the next six to eight months." Lawyers anticipate referencing a 2009 decision from the Ontario Court of Appeal, Serra v. Serra. In that case, the respondent had experienced a great decline in the value of shares he held in a profitable business after separation from his wife but before the trial. The trial judge determined that the respondent should regardless pay more than his then-net worth in equalization payments.

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