Divorce in the time of COVID (audio)

Family Law

Join CKNW Radio Host Stirling Faux as he interviews Family Law Partners Angela Thiele and Cassandra Drake as they discuss the considerations of divorcing during the COVID-19 pandemic.


Host, Stirling Faux: Nice to have you with us this Sunday morning. It’s 8:33 with Julie Wong, I’m Sterling Faux. I owe my old friend John Shorthouse an apology, we were taking about the commercial in which the bankruptcy trustee, Blair Matton, spoke with his radio colleague about COVID divorces, and it was Shorty and Blair, so there you go, John. We talked in July about COVID divorces based on a story that Global News filed called, “Divorces Have Increased During the Coronavirus Pandemic, and Lawyers are Expecting More.” We saw this story, picked up the phone, and called Angela Thiele at Lindsay Kenney. Angela is a partner with the firm, and is an experienced family lawyer. And we called her in July to see if the story was true, and indeed, were you expecting more? And she said yes, and yes. And Angela is back with us now, several months later, as the trend apparently has continued, as predicted, and we’re just catching an update, and we’ll join Angela in a moment here, and then in a few more moments, we’ll meet another partner at Lindsay Kenney LLP, Cassandra Drake, who has just litigated a very interesting divorce case. So Angela Thiele, first up this morning, welcome back and good morning.

Angela Thiele: Thanks Sterling, it’s always a pleasure to try to provide some information to people that are listening to your show.

SF: Well it’s great to have you back on the show, it’s always fun. Back in July when we first talked about this, you were saying that you were, I suppose not surprised by the volume of business, Angela, as much as sort of gearing up for the fact that the volume wasn’t going to go away at all.

AT: That’s correct. I mean, one of the difficulties we’ve had through COVID is that the court is struggling to keep up with the people that need the assistance of the court. And COVID has brought out, I think it’s fair to say, the best and the worst. People that are reasonable are using alternate dispute resolution. The mediators are working very hard to get people resolved. The counselling profession has been wonderful. I had a very difficult case where a well known counsellor worked through COVID with the family because there was a serious parenting issue that had to be dealt with. But when people can be unreasonable because the courts are closed, or restricted, they are unreasonable. And so it’s a situation where your tools to help people are restricted. And the type that sort of revels in the fact that we can’t get things resolved just continues to be unreasonable.

SF: Right. What is the status? Because when we spoke a few months ago, everything was pretty much shut down, Angela, and everything, almost everything, was virtual. You had to Zoom here and there if you needed to get an order, some type of immediate attention from the court. There were avenues that you could use, but they were really in extreme cases only. Has the situation improved in that regard in terms of access at all?

AT: Well to some extent. We never could Zoom in the Supreme Court. And the Supreme Court is where you have to be for urgent matters that come up before a trial. So trials ended for about three months, and we could only go in for urgent matters and those had to be on the telephone. And I think that most lawyers believe that telephone justice is a little difficult because you take longer. You don’t have the ability to see the judge’s face as you’re trying to argue a matter. And the more complex matters sometimes are harder to get across because the judge is looking at paper that you’ve filed, you’ve got the paper that you’ve filed on your desk. You can’t see whether the judge is at the right place. Now I think it’s fair to say that our judges are being heroic. But what’s happening is a bunch of lawyers are lining up to be in chambers on the telephone, and there is so much volume that any complex matter, we’re having difficulty getting it heard. We’re sitting on the phone all day long waiting to be heard. So, that’s the reason why reasonable people try to use a mediator. But if you have to get something resolved, you really have no choice but to deal with the limited court resources. Recently the judges have started to on request hear matters in person with our COVID courtrooms sanitized. And I have chosen whenever possible a personal appearance. And I think I’ve had about four in the last couple of months where it’s a one issue hearing that you can deal with on a personal basis. And that is- we’re actually getting something resolved. We’re not sitting on a phone and waiting and waiting and waiting. But I think what’s also happening in terms of the people that are coming to me, and it’s interesting how as people have become unhappy in their marriages as COVID has worn people down, I find myself very often saying, “Look, lawyers have a responsibility to try and talk to you about if there’s any possibility of reconciliation.” And the grass is absolutely not greener in terms of what you would have to do now to end your marriage. That is, I can’t tell you when I can get you into court. Mediators are booked up. The stress on your children, if you have children, of doing through both COVID and a divorce at the same time. You know, don’t do it, just wait. That’s my general advice, which probably means I’m not opening as many files as other lawyers are but I think that’s the right thing to do.

SF: Sure. Angela, one thing that you have identified in the past to enlighten our listeners, is to really talk a little about what the courts have done since the Family Law Act changed in 2013 with respect to third party. You’ve got the plaintiff and the defendant, the couple, the separating individuals, and either World War 3, or another avenue of approach. And the mediation process, the consultation process, has really been enhanced enormously in the past seven or eight years in BC. Is it working? Especially now with the limitation of ability to in-person anything, but is the introduction of that huge component of third party players into the divorce scenario. Is it working to the advantage of the people involved?

AT: Absolutely. The mediators and arbitrators in this province did a very quick switch to Zoom if they weren’t already using it, and a lot of them were. And it’s actually helping because people are not in the same room, or sort of same physical place, and they have a little bit of time to think it through when they’re on Zoom. It’s not, for unreasonable people, being able to have a retired justice mediator stare them in the face and say, “Look, you’re being unreasonable. You need to settle this.” So I was able – there’s a couple of mediators that were still doing in-person mediations. One retired Justice, Justice Leese did an excellent job for us in about May. We didn’t get it settled, but not through lack of trying. But that was a family that somebody needed to face-to-face talk to them about, “Why do you want to carry on with this litigation? You can get this done and it will be over with. And what has been difficult is that – for example I had two trials that were supposed to be in April, both close to settlement. One, relatively reasonably people and lawyers carried on and settled and were done. One party moved out, bought another house, the family was relocated, the child started going back and forth. They’re doing very well. The other one, much to the benefit of one party, my client had money sitting in trust, the other party had already been able to move on and buy a home. We were close, the other party had no interest in settling once that trial date wasn’t staring them in the face. We’re now looking at November 2021 trial date. And in terms of the cost to the family, both cases, children involved in the middle, and the one person not wanting closure because it’s to her benefit to be, I’m not going to say mean but- it’s like, “Your money’s tied up in trust, interest rates have gone down, great time to buy. I’m gonna see if you take a lesser offer because you just want to get this done.” And in that particular case, the court really can’t help us. We asked for a settlement conference with a judge, which is one of the ways that you can try to get things done. The just don’t have the resources right now. Because judges are very busy doing the other things that just take more time because they’re on the telephone.

SF: Interesting. So Angela, final question to you because I want to talk to Casandra in a minute, she’s been in a recent trial. And I want to zoom in on one of the major reasons for divorce, and this happened to be an argument about whether the kids were going to go back to school in the face of a pandemic or not. Presumably there were many other issues of division of opinion. But just back to something you talked about earlier, the responsibility of the lawyers, and the system itself, to make sure that every time someone comes banging on the door demanding a divorce, and, “That S.O.B. is going to get out of my life and I’m going to get my sweet revenge, yada yada yada.” The responsibility to talk people down from starting a war, one, and two, are you sure, are you really sure you want to do this? Does that still get asked a lot?

AT: I ask it. I think that all of my colleagues in this profession are required to explore the possibilities of reconciliation. But more importantly, to talk about, “Do you understand what this process is going to do? Particularly to your children, at a time of COVID.” These poor kids are insecure as heck, and to add the idea that mom and dad are having a divorce in the middle of it, I just think it’s untenable. If I can convince someone to say, “Look, what’s the harm in waiting?” When we were first starting in March it was easy. Through the summer people started to see this window where things were okay. If they’d started now they’d be right in the second wave, right when their kids have gone back to school with all that uncertainty. So I think that a lot of us try to discourage new files. And sort of say that obviously this is a time that brings out a lot of uncertainty in a married couple, but think about your children. If someone came to me and said, “We’ve been married 30 years, there’s no kids. We want to get a divorce.” Sure, no problem, let’s go. You’d try to talk to them a little bit more, “Are you sure you want this?” But I wasn’t as concerned about a mature couple without children saying, well, “This has brought the end to our marriage.” But the other thing is that in the judicial system we have an initial hearing where the judge talks to people about resolution. Resolution of their affairs, but also have you tried alternate dispute resolution? This looks like a case you could resolve with a mediator. And often I’m saying to people, “Here’s my advice. Here’s a list of good mediators. I think your circumstances are such that you don’t need lawyers to go through the mediation with you as long as you’re getting your advice at key points. And here’s a list of really good mediators.” And people are getting their matters resolved if they follow my advice and act in that fashion and go find a mediator.

SF: Good to hear, Angela, because that’s why the act was changed seven years ago. To introduce that component into the whole system. And it’s encouraging to see that it’s working and it’s encouraging to see that the system has taken it up as actively as they have. Great to have you back with us. I need to take a break and when we come back I’m going to just get you to pass the phone over to your partner Cassandra Drake, because we’re going to zoom in on a case that Ms. Drake has handled recently. One of the reasons for divorce that Angela has so elegantly articulated, of course, is the future of the children. and during a pandemic, oh my gosh, unbelievable degrees of stress. Cassandra Drake and more on COVID divorces. Thank you Angela. We’re back after this.

SF: Coming up to 8:51, we’re talking Family Law and COVID divorce. We had Angela Thiele, a partner with Lindsay Kenney on the line for the first portion of the conversation. We finish up with Cassandra Drake, also a partner with Lindsay Kenney LLP, also a family lawyer. Cassandra thanks for joining us, good morning.

Cassandra Drake: Yes, thank you for having me.

SF: It’s a pleasure. Angela was talking about sort of the generic qualities of the activity level of COVID divorces And I suppose none of us should be surprised that nothing has changed. If anything it’s perhaps up a little. But you are here with us this morning because of the reason for divorce. A lot of people break up for a million different reasons. A lot of them having to do with the kids. And you have recently handled a case involving parents disputing whether the kids should go back to school during a pandemic or not. Did that end up being the basic reason for the split?

CD: No, that wasn’t actually the reason for the split in this particular case. It was a difficult relationship prior to that. There were issues with parenting, certainly, but that particular issue was not the reason for the separation.

SF: Okay but it was a bone of contention, clearly. Did it get resolved in court?

CD: Yes, it was absolutely a bone of contention, and it certainly did. I was able to address the matter using some case law that had come out of the Ontario courts, because we actually didn’t have any decisions here yet. So I was able to refer the judge here to the case law from Ontario that set out the factors that should be considered. And ultimately the judge here did order that the children should return to in-person schooling.

SF: Oh interesting. Okay, so clearly one parent was not at all interested in that, the other was. Huge divide. So the judge just had to impose an outcome?

CD: Absolutely. Yeah, unfortunately in this case the parties weren’t able to resolve it on their own, so the judge did impose – did make an order in favour of the father that the children return to school.

SF: Yeah Angela was extolling the virtues of the mediation component to the family law process that was deliberately altered to include it in 2013. It doesn’t solve all the problems, does it Cassandra? And I guess, specifically, on matters involving children, I would think where the least mediation problems get solved?

CD: Yes, you’re certainly right about that. Mediation is wonderful. We try to mediate all of our files, but sometimes when parents are at loggerheads on certain issues, even a good mediator is not going to be able to get them past it. And that’s why sometimes we do have to rely on the courts.

SF: Right. And as far as your access, you just finished a case. Clearly a very important case, a pretty intense one as well. How was your access to the process throughout it?

CD: The access was great. I mean, the courts did shut down, as I’m sure Angela spoke about. But there were processes to address urgent matters. This particular issue of the in-person schooling didn’t arise until the courts had actually reopened, so we were able to get access to a judge to hear the matter fairly quickly.

SF: Cassandra, Angela was talking about children, and she said if a couple has been married for 30 years, no kids, no entanglements, and they want to get divorced, sure, let’s go. If there are children involved she said her advice would be, “Please, can we reconsider? Can we wait? Did you happen to notice there’s a pandemic going on?” In cases of divorce, even though it’s frequently complicated, I tend to reserve my sympathies for the children. What would your advice be to parents this morning, in that super tense emotional state, contemplating divorce, literally living on a knives edge, where children are involved. Any thoughts?

CD: Yes, I mean I always tell clients, or potential clients, to just put their own feelings aside, as difficult as that can be, especially when it’s a long term relationship like that. As difficult as that can be, put your own emotions aside, and do what’s best for the kids. Because it’s ultimately them that suffer throughout this process.

SF: And generally speaking, does that resonate?

CD: I think it does. I mean not initially sometimes, but I think when people start to realize what impacts the conflict might be having on the kids, most people do come around.

SF: Interesting stuff. Cassandra thanks for this. It’s a timely reminder in an extremely tense and unusual time for families all across Canada. We do appreciate your taking a few moments with us this morning, thanks a lot.

CD: Thanks so much for having me.

Our pleasure. Cassandra Drake, a partner, along with Angela Thiele, both joining us from Lindsay Kenney LLP on a Sunday morning.

This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.