Leap before you think. Family law disputes during COVID-19 and changes to parenting conflicts in the Divorce Act.

Stay positive and informed for your kids’ sake.

In this article, we will suggest how to maintain a positive attitude, with proposed general rules of self-control, useful legal Information about Separation options and limitations during the COVID-19 crisis, and essential insight into the significant amendments to the Canadian Divorce Act coming originally scheduled for March 1, 2021, but now postponed to March 1, 2021. Stay positive and informed for your kids’ sake! See also How will parenting arrangements change in Canada on March 1, 2020?

During COVID-19, we are all either getting closer to our spouses and loved ones or are ready to kill them.  If you have “had it” with your spouse and are seriously considering separation and divorce, consider the following.

Early 19th century, a Ukrainian theologian, Rabbi Nachman of Breslov, taught that if you have a negative thought like resentment or jealousy, you can force yourself to think positively.  Facing the COVID-13 crisis and the immediate shut down of his synagogue, my Rabbi, in his final sermon, told us to stay positive to avoid conflict while self-isolating with our spouses and children.  For those facing the brake up of their marriage, being positive will go a long way to make the divorce process much smoother and less costly.  This is especially with the change in the Canadian Divorce Act coming into effect on March 1, 2021.

General Rules of Self-control

  • If you’re a victim of physical violence and constant verbal abuse, then go your separate ways.
  • Otherwise, in the absence of abuse, a bitter financial or parenting dispute can be costly.  It can bankrupt you.
  • If you feel that a nasty argument is about to happen, then its usually better to be smart than right. Leave your differences to when both of you are in a better place.
  • Never raise your voice for any reason, no matter how bad the behaviour of your partner.   
  • Ever say something that you will later regret? Stop.  Convince yourself that someone else you respect is in the room listening to your angry outburst, and is giving you a disapproving look.  It could be anyone:  Your kids, your employer, your friend, a parent, even God if you are so inclined. So, don’t lash out if provoked and politely excuse yourself. Cool down, go for a nice long walk, play a musical instrument (except the drums), or distract yourself.
  • So, when your partner grabs the clicker for the 6th straight time, make a joke of it.  Then lie if necessary. Explain how much you enjoy that Serbian cooking show rather than reruns of your favourite Raptors games. Wisely let the little things go.

Legal Information about Separation during COVID-19 up to March 1, 2021

  • If you are determined to separate, then please don’t leave your kids behind with the other parent without a legally binding written parenting agreement.  If you leave without one, you’ll likely be spending far less time with your kids than if you had an agreement, and you will undoubtedly lose any hope of custody, in most cases.  If negotiations fail, the Court will resolve the issue, but in the absence of violence, don’t leave. You should try and resolve when the home is sold, the split of other property, and support is determined. So again, get the help of competent Counsel.
  • If you’ve separated and you have a parenting dispute, the Courts are still open if these disputes are urgent or pressing. During COVID-19, the Family Courts in Ontario are now using virtual methods to conduct hearings by telephone or Zoom video conferencing.  Also, your lawyer can now file your Court papers online.  However, to get quick results, the issue must be pressing, like a denial of access to your children, the unfair retention of them, child abduction, or the need for money, e.g., Immediate child and spousal support when warranted.
  • If you can’t or won’t be permitted to see your kids because of COVID-19, then insist on at least video access a few times per week. If your spouse is against exposing your kids to any medical danger, then ask for virtual access such as Skype, WhatsApp or Zoom, and if you fail, the Courts will likely Order at least such access
  • If you fear that your spouse will lie about your interactions with him or her, then communicate by Family Wizard Canada by downloading its App (there is a small fee.) This time-tested communication service for separated parents monitors all emails sent to each other. They can’t be altered using this service.  

Changes for married parents after March 1, 2020.

  • Terms like “custody” and “access” will be obsolete for the Courts to use when they resolve parenting disputes after March 1, 2021, for children of married parents. In essence, these terms will continue to be used for separated unmarried couples or if a Court dispute involving a married couple was commenced or resolved before July 1, 2020.  On that date, an updated version of Canada’s Divorce Act becomes effective.
  • The new terminology for resolving parenting disputes will now use the term “parenting arrangements” to allocate which decisions will be made by each parent and the times for which each parent will be spending with the child and where the child shall reside primarily,
  • One of the two parents may have the power to make all the child’s major decisions such as health, education, religion, and general welfare. The other parent will then be restricted to visiting the child at agreed-upon times or by a written parenting agreement or Court Order.   
  • Alternatively, one parent may be granted the sole decision-making power to decide medical issues, such as the choice of a child’s doctor or other health care worker. The other parent then may have the sole right to make educational decisions, like the school in which the child will enroll.  This division of powers precludes endless bickering over each decision.
  • However, the Courts have not yet interpreted how parenting arrangements will be fashioned.  So, if you want to reduce the uncertainty, apply for custody or access before that date. As the Courts have interpreted the current terms of reference for a very long time, it is easier for a lawyer to advise you as to your chances of success or failure in Court then if the advice is sought for court applications commenced after March 1, 2021. For instance, if the parents are always in conflict, the Courts will usually award sole custody to only one parent, meaning primary residence and the power to make all important decisions. The other parent will then only be granted the rights to visiting with the child at specific times.
  • After March 1, 2021, we have no real idea as to how the courts will interpret different fact situations without the benefit of the terms “custody” and “access.”  And uncertainty means more litigation, i.e., more money will have to be spent on lawyers in the absence of an agreement to obtain a Court ruling. So, if you anticipate a battle, apply now and don’t wait
  • Under the new Divorce Act law, married couples will also be ordered to mediate their parenting dispute before going to a Judge to resolve it or to use the services of “collaborative” lawyers who must agree never to apply to the Court.  This requirement means hiring a private mediator in the absence of the underfunded assistance of the Court’s Family Mediation Service, which is free or, if done inside the Court building but chargeable on a sliding scale based on income if done in a mediator’s offices.
  • In most cases where the parents are particularly hostile to each other, the Courts’ Family Mediation Service will not have the time to deal with every single fight. In such cases, the parties may be obliged to hire a private mediator outside the court building.  Combined with legal fees, this entire process may become unaffordable if, after complying with the new law, one enrolls and pays for a “dispute resolution” process. Still, what if it then fails because one or both parties will not compromise?  You may then still need to go to a Judge for a ruling to be imposed on both parents. In short, bitter disputes will cost even more than they do now if you are faced with a difficult parent who is determined not to agree on an important issue, such as the child’s primary residence.  So, if you are going to have a fight on your hands, then commence your parenting application well before March 1, 2021.  You will likely be paying far less in legal costs if you foresee a war.   

Thank you for reading Leap Before You Think.  Family law disputes during COVID-19 and changes to parenting conflicts in the Divorce Act by John T. Syrtash, Senior Associate, Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 39 years.  John would welcome you to have a heart-to-heart with him-not just as a lawyer-but as someone who has seen a lot of pain and provided comfort.  He knows how to create a positive path forward to thousands. There is no charge for this. It would not be a legal discussion unless you want to go there. Call John at his direct number at (416) 886-0359 or email him at  jsyrtash@gzlegal.com. It’s about connecting.

John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.

John  T. Syrtash B.A. (Hon.) LL. background:
Invited Speaker on Bill 78, Proposed Changes to Canada’s Divorce Act, House of Commons  Standing Committee on Justice and Human Rights  (November 26, 2018)
Editor of the Syrtash Family Law Newsletter, Lexis Nexis
President of the Syrtash Spousal Support Database
Author of Religion and Culture in Canadian Family Law, Butterworths
Author A Calendar of Northern Fables, Amazon

Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.

John T. Syrtash,
Yonge-Norton Centre
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
email: jsyrtash@gzlegal.com

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