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Tuesday April 21, 2020

Supreme Court (Family Division) – Court Options to Proceed Amidst COVID-19

Authored by: Terrance G. Sheppard Posted in: COVID-19 Family Law

On Monday, April 20, 2020, the Supreme Court of Nova Scotia (Family Division) issued updates to its Notices dealing with court operations during the COVID-19 pandemic. The following summarizes those updates.

The courts of Nova Scotia are currently operating under an emergency services model, which means that only urgent matters will be scheduled. In the Family Division, urgent matters include:

The courts are also creating and recommending alternative court options to process files. The following are three examples of alternatives that parties can request:

  1. Document Only Hearing;
  2. Request a Judicial Recommendation; and
  3. Request for a Non-Binding/Binding Settlement Conference via Telephone.

Document Only Hearing

Both parties must agree to proceed by way of documents only and a judge will ultimately decide whether the Document Only Proceeding is suitable.

Some examples of processes that are likely and unlikely to be suitable for a Document Only Hearing are outlined below.

Motions or applications which may be suitable for a Document Only Proceeding include but are not limited to the following:

  • Initial requests for child or spousal support
  • Requests to terminate or suspend child support on the basis that a child is no longer dependent or has changed the child’s place of primary care
  • Requests to suspend support where a payor’s income has changed, for example, because of unemployment
  • Requests to terminate or suspend collection of support arrears
  • Preservation orders
  • Requests to suspend MEP’s enforcement of arrears
  • Motions to be removed as solicitor of record
  • Selected Child and Family Services Act matters

Motions and applications which are likely not suitable for Documentary Only Proceedings:

  • Calculation or cancellation of arrears of child and spousal support
  • Claims for retroactive support  
  • Final disposition applications under the Children and Family Services Act  
  • Non-urgent property claims
  • Contempt applications

You should consult a lawyer to help you determine whether your case can/should proceed by way of a Documents Only Hearing.

Judicial Recommendation

Another option is to request a judicial recommendation. This is also a paper only process that both parties must request and agree to. It permits parties to ask for a non-binding judicial recommendation as to a temporary or lasting resolution to one or more family issues requiring resolution.

All parties must be represented by a lawyer and have an open court file.

Specifically, the court notes that this process may be particularly attractive to parties who have already filed in advance of a conference which did not proceed, a settlement conference that did not proceed, or a trial that did not proceed as a result of the COVID-19 health crisis.

Request for a Non-Binding/Binding Settlement Conference via Telephone

A final option is to request a non-binding or binding settlement conference.

For a non-binding settlement conference, a judge helps the parties come to a resolution and the process occurs over the phone (or video conference, should it become available).

For a binding settlement conference, it also proceeds by phone, with the added feature that a Judge issues a ruling to bind the parties should the parties be unable to reach an agreement. Both parties have to agree to participate in a binding settlement conference.

It is important to note that there are also a number of alternative dispute resolution methods available to you outside of the court system, such as mediation and negotiation, which can also be incredibly effective at resolving disputes. Our Family Law team has a wide range of experience in alternative dispute resolution techniques.

Contact a member of our Family Law team if you have questions on how to proceed with your family law issue during this unprecedented time. Request your free 30-minute consultation via phone or virtual meeting platform (Skype, Zoom, FaceTime, etc.).  

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