Access to justice challenges: COVID-19 and support obligations

  • July 16, 2020
  • Vanessa Lam

(Part 2 of 2)

In my Part 1 article, I said that no one can predict the future. But, when the courts resume regular operations, I predict an overwhelming influx of cases competing for the same judicial resources. In addition to unresolved cases that were already in the system pre-COVID-19, there will be new support issues, property complications (including bankruptcies), increased stress and trauma from family violence, and new separations.

Since regular operations were suspended in mid-March 2020, the courts have dealt with an explosion of urgent temporary parenting issues. I have already written about some of the takeaways from the parenting case law. In contrast, the urgent temporary child or spousal support case law has been much more limited. Alex Boland provides an excellent analysis of some of the emerging, and in some ways conflicting, support cases from Ontario. As time goes on, the case law on urgent support issues is growing.1

Further, on Friday June 5, 2020, the Ontario government amended a regulation that basically allows the provincial maintenance enforcement office to resume driver’s licence suspensions, on or after Monday June 8, 2020. Once this actually starts happening, I predict that Ontario courts will see a flood of support cases.

Courts have understandably held payors to a high standard of disclosure and criticized those who prioritized their own financial needs over those of their dependents.  But I worry that some of the most vulnerable families – payors, recipients, and children – lack a clear path to help them resolve support issues. 

For example, in the Ontario case of Land v. Tudor, the self-represented payor sought leave for an urgent support motion, but his materials were deficient and he was confused on the process to seek a temporary versus final order (paras. 5-8). The process is, in my opinion, very confusing. My Part 1 article also highlighted that it can be substantively difficult to determine if a material change in circumstances has occurred that might justify a variation on a final basis.

Many ex-partners may be settling support matters on a similar “temporary, temporary without prejudice” basis as the courts have been ordering in the parenting context. (J.W. v. C.H., 2020 BCPC 52 (CanLII), at para. 17). I fully support exhausting out of court dispute resolution options in appropriate cases.2 However, negotiations often take place in the “shadow of the law”. Case law guidance helps resolve many issues for families out of court.

Further, I think there are a significant number of people who are not resolving their issues – in or out of court. Overload often leads to inaction. A family impacted by a COVID-19 related job loss or downturn to their business is already facing significant economic stress. What happens to these families?

Besides encouraging out of court resolutions, how can court backlogs be cleared in a timely, proportionate, more affordable, and ultimately fair manner for those families that desperately need the court’s assistance? 

A lot has been written about technological improvements. I also applaud courts for embracing technology to assist with limited court operations. I know these are challenging issues that have historically been woefully underfunded. But I don’t think technology alone is the answer. 

The court process needs to be simpler to make it accessible to the public that it is supposed to serve. Resolutions should be reached in a timely and proportionate way. Access delayed is access denied. Simpler cases where the parties don’t consent should have a simpler process. This frees up court resources for more complex cases.

I want to highlight two modest expansions that I think can provide useful temporary relief for support issues, or which could be later adapted for variations / motions to change seeking final relief:

  1. The Supreme Court of BC, effective April 27, expanded to allow parties to bring certain non-urgent, simple matters by written submissions. Guidance was provided in the notice on the required materials, including page limits. The court retains its discretion to decide if the issue is appropriately determined based on written submissions. Case law is beginning to emerge under this procedure. (C.G.R. v J.L.R, 2020 BCSC 842 (CanLII)).
  2. The Central South Region of the Ontario Superior Court of Justice, effective May 19, expanded to allow motions in writing “[w]here all the parties agree that the motion can proceed based on written material only, without a conference hearing”.

Different courts are facing different challenges. But I worry about inconsistent access to the courts. If courts that have less capacity to hear non-urgent matters are restricted now, how will their backlog be any better once full operations resume? There is no one-size-fits-all solution, but cases can be dealt with justly by using different default procedures and encouraging creative resolutions.

I hope my predictions about backlogs don’t come true. However, I see myself as a pragmatist who aims to be a skeptical optimist. If interested stakeholders can come together to leverage technology and simplify process, I believe that our justice system can truly deliver modern access to justice. And, despite significant challenges, improving access to justice for separated families is well-worth our collective continued efforts.

Vanessa Lam is a family law strategic advisor and research lawyer practicing in Ontario.

1 In addition to the cases discussed by Alex Boland, see the more recent cases of: Skinner v. Skinner, 2020 ONSC 3226 (CanLII), at para. 29; Jumale v. Mahamed, 2020 ONSC 2091 (CanLII), at paras. 8-13; and Mohamed v. Osman, 2020 ONCJ 172 (CanLII), at paras. 27-33.

2 This obligation takes on increased importance in light of amendments to the Divorce Act, most of which will come into force on March 1, 2021.  See, [new definition in s. 2 of “family dispute resolution process”; new ss. 7.3 (duty on parties), 7.7(2)(a) (duty on legal advisers), & 16.1(6) (subject to provincial law, an order may direct the parties to attend a family dispute resolution process)].