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Making Challenging Family Law Decisions During Covid-19

The COVID-19 pandemic has taken away many of our personal choices: children attending school, young people going to university, attending church, going to a mall, going to work, getting a haircut, eating at a restaurant. The list is endless.  

In these extraordinary circumstances however, there are personal choices and decisions that need to be made by those involved in a divorce or a separation arising out of the breakdown of an intimate relationship.

Many of the decision-making factors have been rendered ineffective by the consequences of the pandemic.  The conventional logic that the past is the best predictor of the future no longer applies for most financial analysis. The coronavirus is disrespectful of history and has forced our society to make fundamental changes, and in the process transformed the economy in ways that we are unable to control, let alone predict.

 How is a person to make important personal decisions in such a confusing and complicated environment?  Is it the right time to sell the family residence, buy another house, settle child or spousal support based on historical earnings, take on the responsibility of paying off a line of credit, or pay a spouse to the pension or split it with them? Can the family afford to pay for the children to play competitive hockey or go to Montessori school?

 Psychologists tell us that there are two main systems that influence the way we make decisions: the first is based on a gut feeling, the second on a logical analysis of the facts.  Intuition as the foundation of a decision is based on emotions and is characterized by spontaneous or quick action.  Logical evaluation of a problem is a more thoughtful and slow process, as we search for reliable data to inform our evaluation of the issues in question.

 I have noticed in my family law mediation practice that clients in the midst of a pandemic, that has taken away so many of their choices, want to assume control over personal decisions and rely on their gut feeling to make a decision when negotiating their divorce settlement. The alternative of conducting a logical analysis of the problems and potential solutions often leads to a person becoming overwhelmed with so many variables; this can lead to decision paralysis. This process is also slow and doesn’t satisfy most people’s need for action. In addition, the breakup of relationships often generates anger and mistrust. In pursuit of satisfaction, it can be tempting to prioritize immediate action. Another important dynamic is that family and friends will, in most cases, advocate for immediate action, rather than contemplation and time-consuming analysis.

 The combination of the dynamics I’ve been describing during this pandemic are further complicated by the fact that the family courts are only dealing with urgent or pressing matters and postponing cases that do not meet that criteria. Many litigants, who are already disappointed in the time it is taking to get their personal affairs in order since their separation, are devastated by the news that, because of the pandemic and the backlog of cases, there is no prospect of the case being heard this year. In these circumstances—a combination of a client wanting to rely on their fast-thinking intuition, their need for action, and pressure from family and friends— it can be tempting to act now instead of waiting for better circumstances to settle the case.

It is important not to mistake action for progress, and to consider the long-term ramifications of your decisions. You should meet with your lawyer to discuss the options that are open to you and to make interim or temporary financial arrangements until such time as there’s an opportunity to do a logical analysis of the facts in your case.  You should also consider retaining an experienced family mediator to assist you. Failing agreement, you should contemplate appointing an arbitrator to decide your case rather than wait until the courts are open and able to deal with your proceedings.

Most of all I urge you not to try and “go it alone” and make a deal without the benefit of competent legal advice. Even if you can’t afford to retain a lawyer to deal with the totality of your case, you can pay someone to give you advice on particular aspects of your case, making sure that you are well-informed before making any important decisions. The pandemic has taken away many of our choices, but it does not have to take away the opportunity to make important decisions about your personal family life.