Asking the right questions about virtual vs. in-person family law proceedings, part two

By Rachel Birnbaum, Nicholas Bala and Claire Houston

Law360 Canada (June 14, 2023, 10:36 AM EDT) --
Rachel Birnbaum
Rachel Birnbaum
Nicholas Bala
Nicholas Bala
Claire Houston
Claire Houston
This is the second part of our report on a recent survey of the experiences and views of Ontario family lawyers about the effect the adoption of virtual technologies has on the practice of family law.

In part one we summarized some of the findings about the experiences of these lawyers, and in this part we discuss their views about how the family justice system should further evolve. This survey is the latest in our series of studies about the ongoing changes to Ontario’s family justice system.

Views on policies going forward

When asked about policies, 54 per cent favoured a presumption of in-person attendance for settlement conferences, 31 per cent opposed such a presumption and 15 per cent were neutral. There was strong support of virtual attendance in contested cases where both parties agreed, with 65 per cent in favour, 19 per cent opposed and 16 per cent neutral. Views were more divided about a presumption of in-person attendance if one or both parties were self-represented, with 42 per cent in favour of such a rule, 37 per cent opposed and 21 per cent neutral.  

Comments from Legal Aid Duty Counsel recognized that providing legal services to their clients raised different issues from lawyers in private practice. Legal aid clients are less likely to have access to adequate technology to have effective meetings with duty counsel or attend in court, especially problematic for sharing documents.

It was however, also recognized that for clients in rural areas who lack access to transportation, virtual meetings and court attendance may improve access to justice. Further, a number of lawyers noted that government support for access to technology for those involved in the family justice system would improve access to justice and reduce costs in the long term.

Asking the right questions

Virtual proceedings are almost always less expensive and more convenient for litigants than attendance in person, but usually involve various costs for the justice system. Making a decision about whether to use them usually involves tradeoffs. It is not appropriate to ask a single simplistic question about what should be the (presumptive) rule about virtual family court. Rather, we need answers to a more nuanced set of questions about which parts of which cases in which court sites should be virtual, and how the court system, the practices of professionals and the supports of government can change to better address the needs of those who seek access to family justice.   

This is the second instalment of a two-part series. Part one: Asking the right questions about virtual vs. in-person family law proceedings.

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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