Asking the right questions about virtual vs. in-person family law proceedings
Thursday, June 08, 2023 @ 3:44 PM | By Rachel Birnbaum, Nicholas Bala and Claire Houston
In a relatively short period of time, we moved from a paper-intense system based on lawyers, mediators and mental health professionals meeting with family law clients in person, and lawyers attending court in person, often waiting hours to get before a judge for a short appearance, to one based largely on electronic filing of documents with the court, CaseLines for hyperlinked document management in court, and virtual family court hearings.
As the pandemic ends, and parts of the justice process are moving back towards strong presumptions for in-person court attendance [see Cousins v. Silbourne,  O.J. No. 3027], lawyers are complaining that the justice system should not return to the “age of sail.” Many family lawyers have been arguing that reversion to presumptions of in-person hearings will slow down an already clogged court system, increase costs for already financially stretched clients and reduce access to justice.
This is a two-part article about the findings the authors have undertaken in a series of studies about the ongoing changes to Ontario’s family justice system. In part one we summarize here some of our most recent findings. Part two will explore lessons learned and moving forward.
A key finding is that the use of virtual family court proceedings and other technological changes have had profoundly varying impacts on different parts of the family bar, different litigants and types of cases and different stages of the justice process. There are also very significant variations based on geography, litigant access to resources and courthouse infrastructure. There are tradeoffs when considering increased use of technology, and differential impacts mean that a “one size fits all” approach is not appropriate.
We conducted an online survey of Ontario family lawyers in March to May of this year, with the assistance of several professional organizations. The majority of the 141 respondents were females (59 per cent) and white (80 per cent); 59 per cent had been practising family law at least 16 years. Many were sole practitioners (34 per cent); 30 per cent worked for a small firm (2-5 lawyers); 21 per cent worked for Legal Ontario as staff lawyers, and the rest for mid-size or large firms.
A majority (55 per cent) agreed or strongly agreed that electronic filing at family court in their region is working well, while 29 per cent disagreed. There is less enthusiasm for CaseLines, with only 37 per cent finding that it works well, 36 per cent reporting it does not work well, and 27 per cent neutral. An example of concerns is the comment: “Rarely are the documents available on CaseLines. CaseLines is a challenge for lawyers, and [it] is definitely a challenge for self-reps.”
A substantial majority of lawyers reported that they (60 per cent) and most of their clients (66 per cent) prefer to have virtual meetings rather than having clients come to their offices. A number of lawyers commented on the fact that operating most or all of their practices from their homes improved their work-life balances and reduced their stress. Similar majorities of lawyers reported that they (61 per cent) and most of their clients (70 per cent) preferred attending virtual court proceedings rather than attending court.
For most lawyers and litigants, it is less expensive and less stressful to have virtual meetings and court appearances. Some lawyers (21 per cent) reported significant savings for their clients ($5,000 or more per case), and a larger number of lawyers (43 per cent) reported more modest savings per file if all the proceedings were virtual, though some lawyers (30 per cent) reported no savings for clients, and a very few (two per cent) even reported increased costs due to virtual court.
Several lawyers made comments about the value of virtual engagement for family justice for clients with disabilities or who are victims of domestic violence. Victims of abuse find testifying virtually less stressful, and this allows them to avoid potentially traumatic meetings and in-person cross-examination by self-represented perpetrators. As one lawyer observed:
Clients who have been impacted by DV may be very reticent to “face” their attacker in court. Mediation and/or virtual court relieves them of this concern and makes it much easier for lawyers to arrange these “safe spaces” during either litigation or even mediation (with the right mediator, who understands and is willing to accommodate victims of DV.)
Virtual family justice seems to be addressing access to justice concerns, with 49 per cent of lawyers reporting that they are serving more family clients because of the use of virtual technologies, and 82 per cent reporting being able to serve clients in a wider geographical area. This is especially significant for legal aid clients outside major urban areas who may only be able to find lawyers willing to take certificates who practise remotely, which requires courts to be sensitive to the reality that these litigants will not be able to have representation if judges require counsel to attend court in person.
We asked several questions about the economics of the practice of family law, and the effect of the pandemic. In response to a question about their hourly rates, three per cent of family lawyers reported less than $200/hour, 10 per cent reported $200 - $299/hour, 25 per cent reported $300-$399/hour, 25 per cent reported $400-$499, nine per cent reported $500-$699, and less than one per cent reported $700/hr or more. About 26 per cent of the respondents were legal aid lawyers on a salary. We asked lawyers what changes, if any, were there in their rates and incomes from private practice of family law across the three years of the pandemic. During pandemic lockdown period (March 2020-April 2021), more lawyers reported a decrease in income than an increase in income, while most reported no change in fees. In the next two years, there were more lawyers reporting increases in income, with almost no decreases in fees.
When asked about the effect of settlement on the virtual conferencing process, lawyers were almost evenly split with 30 per cent seeing more settlements, 39 per cent reporting no change, and 31 per cent finding fewer cases settled when hearings were not in person.
Rachel Birnbaum is a professor at King’s University college, Western University, cross–appointed in social work and in childhood and youth studies. Nicholas Bala is a law professor at Queen’s University and Claire Houston is a law professor at Western University. They gratefully acknowledge the legal organizations that facilitated in the recruitment of participants and thank the participants who shared their views and experiences. They will be presenting the results of this study at a free admission Virtual Townhall on Wednesday, June 28 at 12 noon that will include opportunity for discussion of future policy developments.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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