25 Bowring Walk, Toronto, Ontario  M3H 5Z8    Tel:  (416) 635-9264  Fax: (647) 930-1835

Dear Honourable Ontario Chief Justices and Regional Senior Justices of both the Ontario Court of Justice and the Ontario Superior Court of Justice:

Re: Petition to the Honourable Justices re In Person vs Virtual – Standards for Ontario Court Attendance and Access to Justice

I have the pleasure of writing to you all on behalf of the “Ad Hoc Family Law Steering Committee”.  We are a group of Ontario family law lawyers seeking improvements to the justice system in the public interest.

I am presenting to the Honourable Justices today a very widely supported Petition that speaks to access to justice in our family law system. There are 1,090 signatories to this online petition as of noon on 23 May 2022.

The Honourable Chief Justices have issued Notices to the Profession as have various Regional Senior Justices. These notices make it crystal clear that the trend now is to return to in person court.  If a litigant and/or its legal counsel prefers a remote hearing, then there is indeed a very heavy onus to unseat the in-person presumption.

We have heard from lawyers across the province.  We have heard from our own clients.  While I would readily admit that I am biased, I can say with a high degree of confidence that the upset, discomfort and indeed shock at the courts’ directives has been overwhelming amongst the family law bar and our clients.  We see the outrage expressed in social media.  We talk with our colleagues and clients.  Your new Profession Notices are not at all popular.  But much more important than that, the Honourable Justices are mandating what we see as retrogressive steps when it comes to access to justice.

We lawyers and judges are here to serve the public.  I surely do not have to remind the Honourable Justices that an efficient, cost effective, accessible and highly functioning justice system is key to our democratic system.

The legal cost savings to our clients that we have experienced as an unexpected side effect of Covid 19 is nothing short of astounding.  The convenience, the access to justice, the almost total elimination of wasted travel and court waiting time – these are only some of the important advantages that Covid 19 has ‘blessed’ us with.  How ironic!

We therefore respectfully present to you with this letter a petition that has garnered the support of well in excess of one thousand Ontario family law lawyers.  We discover new signatories every day.

We warmly extend to you our open arms and invite you to explore with us revisions to your previous position.   We maintain that nobody should be forced to revert to in-person court appearances against their will. Unprecedented strides have been made (granted due to a virus beyond our control) making family law justice affordable on a significantly larger scale than ever before.

We have witnessed a satisfying reception by the public and the legal profession of an evolving, technologically savvy judicial system and we reject the prospect of regressing to outdated practices of the past.  We simply cannot accept turning back the clock – courts that are economically out of reach, inefficient, physically inaccessible, and unsafe for some are inherently failing to serve the greatest good.  We cannot stand idly by at the expense of those whom we are entrusted to represent.

I am attaching a link to our May 10^th Press Conference along with some of the media coverage that this conference has generated. One of our members, Russell Alexander, has recently penned an article that will soon appear in Law Times in two parts. His article encapsulates our reasoned response to those who maintain that the presumptive mode of court attendance should be ‘in person’.  I take the liberty of attaching a pre-publication version of his excellent article.

The public wants cheaper and more efficient access to justice. On behalf of the committee, I hope that this letter will be the catalyst for positive steps to come.

Yours truly,

GENE C. COLMAN

Enclosures:

The Petition; Links to Press Conference and its media coverage; R. Alexander’s article

The Petition

Petition to Amend the Requirement For In Person Court Attendances

Signatories as of 23 May 2022 at noon: 1,090

Found online at https://www.complexfamilylaw.com/wp-contentchng.it/8PK9M5YK

We, the undersigned lawyers and paralegals who practise family law, hereby petition to the Attorney General of Ontario and to the Regional Senior Justices, that there shall be immediately put in place an overriding direction that all court attendances shall be presumptively virtual unless the parties and their counsel agree otherwise or if the court for good reason orders that a particular attendance shall be in person or hybrid (ie. some may attend virtually and some may attend in person).

The Issue

1.    The Chief Justice and Regional Senior Justices at both Ontario court levels (Ontario Court of Justice and Ontario Superior Court of Justice) have issued Notices to the Profession that stipulate revised practices and standards to determine whether various types of court attendances shall be in person or virtual.
2.    While the directions are not always consistent, there is a disturbing trend to emphasize the necessity for in person attendances as opposed to virtual attendances.

MEDIA COVERAGE RE IN PERSON VS VIRTUAL

May 10^th Press Conference

https://www.complexfamilylaw.com/wp-contentwww.youtube.com/watch?v=5SFHCvyoMYU

Law Times

• https://www.complexfamilylaw.com/wp-contentwww.lawtimesnews.com/practice-areas/family/ontario-family-lawyers-hold-virtual-press-conference-urging-the-courts-to-continue-remote-hearings/366553

Ottawa Sun

• Family lawyers fight against return to in-person court proceedings

Toronto Sun

• https://www.complexfamilylaw.com/wp-contenttorontosun.com/news/provincial/family-lawyers-fight-against-return-to-in-person-court-proceedings

Global news

• https://www.complexfamilylaw.com/wp-contentglobalnews.ca/video/8824478/family-lawyers-asking-for-remote-hearings-to-continue/

CTV news interview

• https://www.complexfamilylaw.com/wp-contentnorthernontario.ctvnews.ca/video?clipId=2434727

CBC radio (x2)

• Links to be provided

Legal Matters Canada

• https://www.complexfamilylaw.com/wp-contentlegalmatterscanada.ca/family-lawyers-deliver-a-wake-up-call-to-the-province/

lawtimesnews.com

Ontario family lawyers hold virtual press conference urging the courts to continue remote hearings

https://www.complexfamilylaw.com/wp-contentottawasun.com/news/provincial/family-lawyers-fight-against-return-to-in-person-court-proceedings

https://www.complexfamilylaw.com/wp-contentglobalnews.ca/video/8824478/family-lawyers-asking-for-remote-hearings-to-continue/

Keep divorce cases virtual, lawyer argueshttps://www.complexfamilylaw.com/wp-contentnorthernontario.ctvnews.ca/family-lawyers-call-out-for-virtual-court-appearances-1.5900175

As courts in Ontario resume in-person hearings, a long-time Ontario lawyer is suggesting divorce proceedings remain virtual.

Russell Alexander  4:37 PM

CBC radio interview from Tuesday. Feel free to circulate.https://www.complexfamilylaw.com/wp-contentwww.cbc.ca/listen/live-radio/1-92-all-in-a-day/clip/15911731-ontario-family-lawyers-petitioning-return-person-court

CBC Listen

Ontario family lawyers are petitioning against the return to in person court | All in a Day with Alan Neal | Live Radio | CBC Listen

Ontario family lawyers are saying that returning back to in person court will only create more barriers and enforce less access to justice. (44 kB)

Refuting the Case for In-Person Court, Point-by-Point

By Russell Alexander (to be published soon in Law Times)

Prior to the COVID-19 pandemic, there were many complaints about Ontario’s Family Court system.  It was too slow.  It took too long to get a hearing date.  It was too expensive. It had been using a clunky, paper-based in-person advocacy system for literally hundreds of years.

In short:  Access to the justice system was broken.

Once the pandemic was upon us, the Family Courts grounded to a halt, with all matters being adjourned, and limited access being arranged for emergency and urgent ones.  The Courts adopted a system called CaseLines and pivoted slowly to a digital document-filing platform.  The “Zoom divorce” was born.

Like it or not, massive changes to the Family Justice system were upon us.

Now, more than two years later, businesses and society are opening up again. We can fully see and appreciate the many efficiencies and opportunities that the pandemic has wrought. The system actually runs better, and costs for divorcing families have been reduced.

Yet the Family Courts’ administration has been directed to return to in-person hearings for certain matters, on a presumptive basis. Virtual court is still available, but on a limited basis only.  This seems like a huge step backwards, and in our view each of the points in favour of this hybrid approach, can be easily refuted.

1) Judges’ Workload

Most arguments in support of the return to in-person hearings focus on the Family Judges’ own capacity for hearing cases remotely, and their ability to handle new technologies. Some judges apparently report they are less efficient in a remote environment, in terms of the number of cases they can hear each day.

But these complaints existed long before the pandemic; and returning to in-person hearings, without more, cannot solve those issues.  Instead – and assuming the Judges’ concerns are not merely “straw-man” arguments – they can be readily addressed through better training of the judiciary, and improved technology.

Indeed, many of the less-traditional members of the Judiciary have even praised the new technology, noting it is efficient, equally effective, and reduces travel time to the courthouses for all participants.

2) Mixed Dockets

A related (and arguably premature) concern is that a mixed Family Court docket of both in-person and virtual hearings is untenable.  As the argument goes, this will result in scheduling confusion.

Yet blended lists were already common prior to the pandemic. They are nothing new. In the past, Family Courts would often break for a teleconference with out-of-town counsel or witnesses or conduct these hearings in their chambers. There were also virtual trials and hearings prior to the pandemic, in other civil and criminal matters.

So, the solution is already at-hand.  Judges have already been provided with laptops to access Zoom hearings, and they can continue to use technology to manage a mixed docket. They can simply have their laptops with them when they conduct hearings at the courthouse in-person and retire to chambers when Zoom hearings are scheduled.

3) Missing Out on “Hallway Settlements”

Another concern is that a virtual hearing model precludes litigants from exploring “hallway” negotiation and settlement opportunities. Historically, some judges have complained that litigants’ counsel do not always talk to each other prior to a case conference.  They must be directed to go into a hallway or ante room to negotiate, then return to the case conference when they have narrowed the issues. By precluding this opportunity (as the argument goes), fewer cases will be settled, and the caseload will increase.

This may be a valid complaint about an all-virtual model, but it is not as black-and-white as it seems.  Cases don’t typically get to court without any of the participants talking to each other.

First of all, the Divorce Act requires parties to explore family dispute resolution before they show up before a judge for trial or an interim hearing. Prior court orders or separation agreements often include dispute resolution provisions that force settlement options to be explored, long before any court proceedings are commenced. Lawyers usually phone each other, write letters, and explore mediation opportunities. Court proceedings are only required when there is a disagreement on a legal issue, a failure to follow procedural steps, or an unwillingness to agree to a reasonable settlement.

All this means that when counsel attend in-person, the issues have already been reviewed extensively in advance.  There is not much gained by continuing the dispute in the hallway.

4) Access to On-Site Mediation and Duty Counsel

In a similar vein, another concern raised about virtual hearings is that litigants will not have ready access to courthouse mediators, who might assist them in resolving their issues without needing a court hearing at all.

While this may be technically true, it ignores the fact that mediation never take place on the courthouse steps anyway.  It should be required prior to, or after, scheduled court conferences – and certainly not the day of the hearing.  To do otherwise creates significant delay in terms of screening and line-ups to access the mediator.

The other objection that is frequently raised, is that litigants in a remote hearing model will not have access to in-person duty counsel, who often have offices right on courthouse property.  But this again places the focus on the wrong spot: The better approach is to look at inefficiencies of the current system, which sees in-person duty counsel screening and assessing whether self-represented litigants meet the financial criteria to qualify for assistance. Having the litigants and the opposing parties physically stand around to await the outcome of this screening process is a poor use of everyone’s time – including the court’s own time and resources if it turns out the applicant does not qualify for duty counsel’s assistance.

In short, the use of in-person duty counsel actually increases expenses and creates inefficiencies. One clear improvement would see the creation of a virtual “office” or “waiting room” within the parties’ Zoom hearing, where duty counsel can silently monitor the proceedings and do other tasks at the same time.  If called upon by the court for assistance, duty counsel and the self-represented litigant can be placed in a virtual breakout room, where the financial eligibility test can be applied, and where the litigant can receive advice as needed.

5) The Formality of the Process

One pithy argument in favour of returning to in-person hearings centers around formality and court decorum. The feeling is that the experience of actually being inside a courthouse, and physically in a courtroom before a judge, can have a subtle but significant influence on the parties to any litigation.  Plus, the court itself has a toolbox of on-the-fly options to encourage settlement between the parties.

Yet in our view, any benefit occasioned by presumptive in-person hearings are far outweighed by the cumulative advantages of virtual hearings.

For one thing, the cost savings of Zoom conferences are considerable. There’s no travel, no parking, and no traffic. Fuel costs and inflation make traveling to and from court much more expensive. There’s no more sitting around for several hours – or the entire day – waiting for the hearing to begin.  And from the clients’ perspective, no paying for their lawyers to do all that on-site waiting.

Plus, the option of virtual hearings also improves litigants’ access to legal representation of their choice. With no geographical constraints, clients can choose their preferred lawyer from anywhere in the province.  Lawyers will also be more readily available for the currently under-served northern and rural communities. Clients with legal aid certificates will be more likely to secure a lawyer.

6) Access to Justice

The other common refrain about the need to return to in-person hearings, is that not everyone has access to technology. The theory is that virtual hearings might shut out those who are economically disadvantaged, and who may need the Family Justice system more than most.

While this might be a valid concern, it is likely not widespread. Most people can access a case conference through Zoom – even if it is with the assistance of a friend, family, or employer.  A recent study indicated that 97% of Canadians have access to the internet. Justice “hubs” can be set up at libraries or the Superior Court of Justice’s Family Law Information Centres, or in empty courtrooms, for those parties who cannot access the required technology. There are many other innovative ideas to address the issues of technology, connectivity, and access.

For some participants, the use of virtual hearings will ease the psychological and emotional toll of having to go through the Family Justice system in the first place. Especially in high-conflict divorce and parenting time matters, both the spouses and children are usually fraught and uncertain. Going to court in-person, confronting an ex-partner, dealing with conflict, and facing the many lingering health risks from the pandemic – these can all have a huge negative impact on the individual parties.  Remote hearings inherently put physical distance between them and can ease some of the stress involved in the process of resolving their issues. The parties can conduct their hearing from the safety and privacy of their own homes.

Family Violence Victims

In a related vein, advocates for family violence victims have also raised concerns over how the Family Court system should go forward, in terms of hearing options. As reported in the legal media recently, a women’s shelter has argued against the continued use of virtual hearings. We are familiar with this organization and have contributed both our time and money to support their cause. However, we disagree with their arguments, and in our collective experience victims of domestic violence are much better served and protected when their Family Court proceedings are virtual.

As one of the arguments goes, when a hearing takes place behind a set of computer screens, a Family Court judge may not be well-positioned to scrutinize the dynamic between the abuser and victim, to watch for indicators of ongoing abuse, intimidation, and coercive control. This lack of court awareness and protection can discourage already-vulnerable abuse victims from asserting their rights and getting the legal support they need.

But in our experience, remote technology can actually heighten the protection afforded to such vulnerable victims, on the balance. For one thing, Family Court judges have vast depths of experience in discerning the demeanor and credibility of participants and witnesses.  This is not automatically diminished simply because the assessment takes place online. In fact, it has been suggested that the close-up nature of the images on a computer monitor can allow seasoned judges an even better look at the participants.  They can spot subtle facial nuances and credibility “tells” more readily than ever before.

Secondly, remote hearings can regulate and prevent litigants who perpetrate domestic violence from using the litigation process to exact even further psychological harm on their victims, through in-person intimidation and harassment.  Simply put, an abuse victim can avoid being in the same room as their abusive ex-partner and his or her family. There is no fear of in-person confrontation on the courthouse steps.

That Was the Wind-up – Now the Pitch

The Family Court system is at a crossroads; it can take a step backwards, or it can move forward and continue to improve in all respects – the most important one being improvements to access to justice.

In light of the COVID-19 pandemic, the Judiciary and the stakeholders in the system’s administration certainly deserve our extra gratitude. They have navigated an unprecedented crisis and have worked tirelessly to keep our system running.

But now that the crisis seems to be on the wane, it’s time to seize the opportunity to make long-term improvements.  Simply reverting to old processes and requiring participants to return to in-person Family Court hearings, will be an opportunity lost. It may even lead to inertia and the possible collapse of an already overloaded system.

Albert Einstein was attributed with saying “insanity is doing the same thing over and over and expecting different results”.  In our respectful opinion, the only real and effective way to improve access to justice is not merely by making remote hearings a permanent fixture of the system, but by making it the presumptive model for all Family Law matters.