Pandemic splits getting nastier as divorce trends hold steady

By Michael McKiernan | September 16, 2022 | Last updated on September 16, 2022
4 min read
couple having an argument / PeopleImages

Divorce rates may not have spiked in the era of Covid-19, but the pandemic has prompted a spate of spikier splits, say family lawyers.

When the country locked down in March 2020, many predicted a rise in divorces would follow as stress and uncertainty compounded the difficulties of couples cooped up for longer than they were used to.

Laura Paris, a lawyer with family law boutique Shulman & Partners LLP in Toronto, said she was among those forecasting a divorce boom in the early months of the pandemic, when the firm began dealing with a flood of calls from prospective clients.

“Once people started to have an idea of what was going on here — that they might be spending a long time at home, either laid off or working from home, and with their children home from school — there was a big spike in the number trying to find out what their options were and what a separation might look like,” she said.

However, Paris said that talk never really translated into much action, and the firm’s caseload of new files has remained relatively stable throughout the pandemic.

Statistics Canada’s limited data on pandemic divorces backs up her experience: Monthly filings for fresh divorce applications dropped off spectacularly when the lockdown kicked in during March 2020, before recovering to a level that closely tracked the previous year’s figures during the second half of 2020, the most recent year for which information is available.

In fact, just 43,000 divorces were logged across the country in 2020, the fewest registered since 1973. StatsCan acknowledged that pandemic-related court closures and jammed-up legal processes could help explain the low numbers, but they fit with a trend that has seen divorce rates fall consistently since the early 1990s, when roughly 13 of every 1,000 married people divorced each year. By 2020, that rate had fallen to just 5.6 out of 1,000.

It was a similar story at Feldstein Family Law Group in Markham, Ont., according to the firm’s principal Andrew Feldstein. The pandemic manifested less in the volume of cases than in the intensity of matters, he said, explaining that Covid-19 and its associated safety protocols gave parents in particular a new set of issues to disagree over.

“People are fighting more. There’s a lot more anger, which is obviously creating more conflict between the parties,” Feldstein added.

Paris said the legal profession’s shift to video and phone-based service over the last two years has also added more complexity to client relationships.

Only in their absence have many lawyers realized how critical in-person meetings were to getting to know their clients and building the kind of rapport that allows them to speak more freely about the costs and benefits of certain legal approaches, she said.

“What makes sense under the law and what makes sense for your family are not always perfectly aligned. If you’re entitled to spousal support, you could chase it and get the win, but you have to consider whether it’s worthwhile in terms of the time and money it will cost you, as well as the animosity it creates with a former spouse whom you still share your kids with,” Paris explained. “You can reason with your clients, but those conversations have become a lot more challenging.”

Still, the online revolution has not been all bad news, she added. By forcing the courts to belatedly embrace electronic filing and virtual hearings, Paris said the pandemic has helped reduce legal fees by cutting out unnecessary travel costs and wasted time waiting in court for matters to be called.

The willingness of both the legal profession and the court to adjust to difficult circumstances was a major silver lining of the pandemic, Feldstein said. “I really hope that it continues, because it has made us more efficient.”

For those with significant investments, Feldstein said recent market volatility could have a bigger impact on their divorce than the pandemic.

Ontario’s Family Law Act, similar to legislation in other Canadian jurisdictions, requires the division of wealth accumulated during the marriage, with an equalization payment usually owing from one spouse to another by the person with the higher net property value.

“The challenge for financial advisors is that their clients are now potentially playing with money that doesn’t belong to them, which makes it a much riskier proposition,” Feldstein said.

Although payment may not be due immediately, obligations are triggered on the date of separation, rather than the date when a divorce is eventually granted. Either way, the costs associated with an unanticipated divorce may shorten the time horizons for some investments.

“The problem is that clients don’t call their financial advisors early enough in the process to have discussions about how their investment strategy should change based on their divorce,” Feldstein said.

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Michael McKiernan

Michael is a freelance legal affairs reporter who has been covering law and business since 2010.