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The misguided return to in-person family court hearings: part two | Russell Alexander

Thursday, May 05, 2022 @ 9:12 AM | By Russell Alexander

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Russell Alexander %>
Russell Alexander
In the first of this two-part series, we introduced our concerns over recent Guidelines handed down to Ontario family courts by Chief Justice Geoffrey Morawetz, effective April 19. They state that there is now a presumptive return to in-person hearings for most steps in a proceeding, including case conferences. This edict was fortified soon after, in an Ontario Superior Court of Justice ruling in Cousins v. Silbourne Court File No. FS-20-121-00.

In that part we offered several reasons that the Guidelines should be retracted, and the judicial presumption rescinded — especially as they pertain to case conferences. We continue that argument here in part two, with some additional points to consider.

Merits of virtual hearings

No one can argue that there is some benefit to having in-person case conferences. The formality, decorum and experience of being in a courthouse, and in a courtroom before a judge, can have significant influence on the parties to any litigation. The court experience can be a major one — plus, the court itself has a toolbox of options to encourage settlement between the parties. Others argue that there are broader interests at stake: litigants without suitable technology or Internet access who are not tech-friendly might be left behind.

Assuredly, all of these elements play an important part in the justice system and in the process of dispensing justice in any individual case. Yet in our view, the cumulative advantages of virtual hearings far outweigh the corresponding benefits of presumptive in-person hearings.

Still, cynics may argue that having litigants sit around the courthouse hallways and wait is tantamount to a system-imposed screening and forced attrition — because parties might be prompted to settle their cases just to get them over with. This does not seem like a fair and balanced approach to the administration of justice.

Case for dropping the presumption

This risk is remedied by the use of remote/virtual case conferences because it actually improves access to justice and the expeditious resolution of disputes in several ways.

First, let’s revisit the odds of settlement. If only 10 per cent of cases resolves at the first case conference, it may be a fair inference that the same 10 per cent would also resolve their matters via a Zoom case conference. This renders the in-person experience to be arguably unnecessary.

Second, the costs savings of Zoom conferences are significant. No travel, no parking, no traffic. Court security lineups, confrontations and courthouse conflicts are all eliminated. There is no more sitting around for several hours or the entire day. Legal expenses of each of the lawyers representing the parties are also significantly reduced.

Third, access to justice can only continue to improve. Clients can choose their preferred lawyer from anywhere in the province. Lawyers will 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.

Fourth, technology and the Internet heighten accessibly to the justice system, as compared to having to travel several hours to the courthouse and back. Most people can access a case conference through Zoom — even if it’s with the assistance of a friend, family or employer.

Justice “hubs” can be set up at libraries or the Superior Court of Justice’s family law information centres, or in empty Superior Court of Justice courtrooms, for parties who cannot access the required technology. There are many other innovative ideas to address the issues of technology and connectivity.

Fifth, the court can implement procedures to screen and assist victims of domestic violence who are involved in family court matters. This will also help to regulate and prevent litigants who perpetrate domestic violence from using the litigation process to exact further harm, harassment and psychological damage on their ex-partners.

Sixth, the toll on peoples’ mental health of going to court in person, confronting their ex-partner, dealing with conflict and potential health risks lingering from the pandemic can be remedied by via Zoom case conferences. Parties can conduct their hearing from the safety and privacy of their own homes.

Seventh, the rise of self-represented litigants is a problem that plagues the family court system. Remote hearings by Zoom have stymied this somewhat. It has helped those who would otherwise have to resort to self-representation by freeing up more family lawyers. Those lawyers could keep practising and serving clients remotely, despite health concerns, daycare, and other needs. For example, clients in rural and northern communities were retaining lawyers with legal aid certificates from the GTA and other larger centres.

If in-person hearings return to the old norm, many family lawyers will simply no longer practise family law. That is the benefit of a law degree: we can choose to practise in any area of law that does not require in-person attendances (and the list is endless: wills, estates, real estate, corporate, tax, business and so on). An exodus of family lawyers will result in fewer lawyers accepting legal aid certificates, and increased time and expense associated with in-person hearings.

All of this will result in alarming spikes in the number of self-represented litigants.

Plus, self-represented litigants often require greater time and resources to adjudicate their matters. They may be unable to focus on the legal issues. They may not understand the law, fail to comply with the Family Law Rules and be unaware that there are rules of evidence and court-issued practice directions that they need to follow. They can sometimes be vexatious.

All of this often results in mental and emotional strain on the judiciary, and can lead to burnout, inertia and the justice system’s slide to entropy.

Finally, it’s important to remain mindful of the primary objectives of the Family Law Rules: to save time and expense. Rule 2, (2) to (4) set out these objectives clearly:

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 a case 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.

When viewed holistically, the goals of this Rule are amply served by favouring virtual hearings over in-person ones.

Enhanced timeliness

Further support for the use of virtual hearings hinges on timeliness. The timely access to the justice system is a fundamental principle espoused the Supreme Court of Canada in several decisions. As just one example, in Hryniak v. Mauldin 2014 SCC 7 the Supreme Court of Canada admonishes that there must be a substantial culture shift in the civil litigation system, to ensure that courts are able to provide timely and affordable access to justice.

Toward this end, courts must adopt processes which are “proportionate, more expeditious and less expensive means to achieve a just result than going to trial.” As Justice Andromache Karakatsanis wrote at para. 28 of Hryniak:

…[T]he proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

This principle adapts itself well when justifying the use of virtual hearings. True, the in-person hearing model for case conferences may have been the traditional format, but this does not guarantee that it is still the best, timeliest and most effective one.

Administrative aspects

Finally, a movement away from the presumptive in-person hearing model may give rise to smaller administrative obstacles, but these can be readily overcome. For example, any procedural issues that linger beyond a first case conference (such as outstanding disclosure), can be simply resolved via written materials, and by a 14B motion. Or, they could be resolved at a continued case conference via Zoom.


In our view, in-person attendance should only be triggered when there is a real settlement-oriented component in place — when the parties and court have all the information required to make an informed decision (or recommendation), and only once the case is ready for conferencing and adjudication.

We look at it this way: in connection with the family justice system, the pandemic has given us a silver lining — namely, many gains in speed and efficiency. Let’s not lose that silver lining by insisting on in-person case conferences when virtual hearings serve the same purposes equally well — if not better.

This is part one of a two-part series. Part one: The misguided return to in-person family court hearings.    

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers. He is a renowned speaker who has presented at several conferences in Canada and the United States. Alexander has created a team-based approach that focuses on clients’ interests with a mission to respect client goals and protect their rights by providing custom family law solutions.

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