By Nathalie Boutet, based in Toronto, is an experienced family law lawyer, accredited mediator and certified Family Enterprise Advisor, skilled at providing unique strategies and out-of-court results to the complex legal, financial and human matters related to separation or divorce for high-net-worth families and business owners. nboutet@boutetfamilylaw.com

COVID-19 has impacted all sectors of the economy, including real estate. The uncertainty is particularly challenging for homeowners who are at a crossroads in their relationship or in the process of separating.

The heightened tension created by the pandemic can fuel anger and conflict, leaving children especially vulnerable. If it becomes too tense in the residence and someone needs to leave, the process has become a little more challenging than before, but there are still viable options.

Should homeowners sell when there is a separation during the pandemic?

At the time of writing, real estate remains a sellers’ market with little supply. It may be more difficult for families in need of alternative living arrangements to allow for a physical separation.

It is also challenging for couples to get an accurate value of their property because the markets are in such flux. Compounding this is the difficulty for a spouse to qualify for a mortgage if their income has been affected by a layoff or a termination as a result of the coronavirus. With such an overwhelming scenario and an uncertain economy, now may not be the best time to make important decisions such as selling the family home.

It may make more sense to access short-term rental accommodation during the pandemic while the legalities of the separation are sorted. The protocols for finding a rental property have changed to accommodate physical distancing, with virtual showings, and only people with serious offers may be able to attend in-person to see the place before finalizing the offer to lease.

Consider the best interest of children

Couples struggle to know if it is in their children’s best interest to stay together under the same roof, even if there is a lot of acrimony, or if it’s better to live physically apart.

While it’s likely harmful to the children’s well-being if the family stays together under tense or acrimonious circumstances, there may also be harmful to the children if a parent leaves without a formal parenting plan in place. Struggling parents should look for counsellors, lawyers, mediators and financial planners who now offer their services by phone or videoconference, to get quick, professional guidance toward the solutions that work best for the family’s circumstances.
 

Who pays what?

Money is often the biggest source of conflict, and this could get worse if someone’s livelihood was affected by the pandemic. They struggle to find a fair way to pay the household expenses and the children’s expenses after the decision to separate has been made – even if they continue to live under the same roof.

While there is no one-size-fits-all solution, there are many ways to deal with expenses. It depends on a number of factors, including who has financial resources. It may make sense to continue the same arrangements that were in place before the decision to separate until professionals can guide the family towards different arrangements.

In some cases, couples put an agreed amount of money in a joint account and use that to pay family expenses until there is a more long-term arrangement in place. Sometimes, separating spouses may even be able to structure their payments in a way that maximizes tax savings. It should be noted that if a couple decides to live in two separate residences during separation, these expenses are shared equally.

Family laws are fairly complex when it comes to finances and money, and it is recommended to speak to a family law lawyer or mediator about these types of questions.
 

Legal ways to separate

Among the various legal approaches, there are two very good options for separating families, and they are collaborative negotiations and mediation. These two systems are encouraged as the first choice under Ontario’s revised Family Law Act, to help families reach agreements out of court with the aim of preserving some kind of relationship after the legal process is complete. The cost also tends to be less than going to court.

Professionals that work in these two systems have received special negotiation and communication training, using specific techniques that are very beneficial to helping their clients and families.

Especially with courts closed during the pandemic, and only urgent matters being heard, collaborative negotiation and mediation offer fantastic avenues for couples to quickly access help and find solutions that are best for their family’s needs.