April marked the start of the return to in-person hearings for case conferences, settlement conferences, long motions and trials in Ontario family law courts. Although surely a step forward in the span of the pandemic, some family law lawyers are critical of the shift in policy.
Recently, a group of family lawyers across Ontario have gathered over 1000 signatures to keep virtual hearings standard practice. Currently, the Superior Court of Justice’s guidelines list virtual hearings as “the default for first appearances, early or urgent case conferences and triage courts, urgent motions and trial scheduling, among others.” It is notable that these guidelines are just that: guidelines that are not necessarily always followed at the discretion of the court.
Virtual Hearings Can Enhance the Affordability and Accessibility of Family Law Matters
From the perspective of clients, virtual hearings can enhance accessibility. Clients residing in rural areas may have limited access to public transportation. With the rising costs of gas, trips to the courthouse for 30-minute appearances may not be all that worth the cost. Virtual hearings can help save time and money on transportation.
While at home, parents do not necessarily need to seek childcare. For child protection proceedings, remote hearings can encourage more parents to attend without physically being present. For contentious family disputes, it can help if both parties are not in the same room together. In this way, virtual hearings can be a safer option in some circumstances.
Being in their own space can make the family law process a little less intimidating for clients than experiencing it within an unfamiliar courtroom. Clients won’t need to go through security lineups, and ultimately the expenses of their lawyers are reduced. They can choose a lawyer from anywhere within the province, which is especially beneficial for those in smaller communities with less choice.
In many ways, virtual hearings can help achieve the primary objectives of the Family Law Rules:
Primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly.
Dealing with cases justly
(3). Dealing with cases justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
Virtual Hearings Are Not Without Disadvantages
This goes both ways, however. It is important to remember that although individuals may not need to travel to get to their matters in court, not everyone has experience or even access to the required technology. Even in rural areas, connectivity may pose challenges.
Similarly, for self-represented parties, virtual hearings may make a difficult job even harder. With limited help from Legal Aid Ontario, there is no duty counsel for the self-represented to speak to and they can get lost. It is becoming the case that access to justice hinges on access to technology, which is an added expense for clients already experiencing difficult transitions in their life.
Additionally, the time saved driving may very well be negated by the time required for technological and administrative support in virtual hearings.
For some judges, virtual hearings are less efficient. In Cousins v Silbourne, the presiding judge was expressly critical of virtual hearings. As he explained:
“One might say, what is the difference if hearings are scheduled in-person and/or virtually? Without getting into the rationale for the presumptive mode of hearings, some types of hearings are more effective in-person or where there is a final determination being made by the court. But there is a further difficulty. Having the same judge hear some matters in-person and some virtual hearings from the same daily list is simply not doable. There are not sufficient judges, courtrooms or court staff to have separate lists dependent on the mode of hearing. Hearing a mixed list is problematic for judges, staff, counsel and parties for many reasons including that time estimates for hearings are not always reliable and technology issues sometimes arise.”
Virtual Hearings Are Likely Here to Stay
However, you feel about virtual hearings, it is clear they come with both benefits and advantages. Some of the negatives felt by virtual hearings may simply be a matter of adjustment. Many of these shifts occurred seemingly overnight, so further time may be needed for processes to be improved and individuals to adapt.
But it is undeniable that in-person hearings may sometimes be the best option for all parties involved. Face-to-face connection has been sorely missed over the past two years, and how we communicate is not limited just to our words or facial expressions. There are some things that cannot be understood through a computer monitor. That said, with a backlog of cases in Ontario family courts, the solution is surely somewhere in the middle.
Contact GDH Family Law for Help with Your Family Matters
At GDH Family Law in Vaughan, our team of skilled family and divorce lawyers is dedicated to providing quality service to their clients, whether their matters are handled, in-person or remotely. We handle matters from separation and divorce to parenting time and decision-making. You can view all of our services here. If you have questions about whether your next family law appearance will be in-person, or your family law matter in general, please contact us online or call us at 416-535-6944 to schedule a free initial consultation.