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| Russell Alexander |
Courts have, both judicially and practically, acknowledged that virtual proceedings can enhance access to justice. At the same time, policy is shifting toward renewed reliance on in-person attendance for routine matters. The tension between these positions is difficult to ignore.
This is not merely a procedural adjustment. It raises broader questions about how access to justice is understood and implemented in practice.
A system that identified a path forward
In Worsoff v. MTCC 1168, 2021 ONSC 6493, Justice Fred Myers described virtual proceedings as one of the most significant advancements in access to justice since Hryniak v. Mauldin, 2014 SCC 7. The reasoning was rooted in practical considerations.
Virtual hearings reduce the need for litigants to take time away from work. They eliminate travel and parking costs. They reduce the amount of non-productive time billed by counsel. They also allow for more efficient scheduling of court resources.
These are not marginal efficiencies. For many litigants, they are the difference between being able to participate in the process and being effectively excluded from it.
The shift back to in-person attendance
Despite these recognized benefits, Ontario family courts have moved toward requiring in-person attendance for short motions — the very type of proceedings most suited to virtual formats.
These hearings are typically brief, procedural and grounded in written materials. They often involve discrete issues such as parenting schedules or disclosure. In many cases, oral submissions are limited and focused.
Against that backdrop, the rationale for requiring physical attendance is not immediately clear. The shift appears less like a considered recalibration and more like a reversion to established practice.
The practical impact on litigants
The consequences of this shift are not abstract.
Reintroducing in-person attendance brings with it the need to travel, wait and incur additional costs. For many individuals, it requires time away from employment and additional logistical planning. These factors can materially affect a litigant’s ability to engage with the process.
Virtual hearings had begun to reduce these barriers. Their removal risks reinstating them.
There are also broader systemic implications. Virtual proceedings allow counsel to appear in multiple matters in a single day and reduce idle time between appearances. Courts benefit from increased scheduling flexibility. Reverting to in-person attendance inevitably reduces these efficiencies.
Geography also becomes relevant again. Litigants who live outside major urban centres may face disproportionate burdens when required to attend in person.
Judicial workload pressures — a necessary acknowledgment
Any discussion of this issue must acknowledge the pressures facing the judiciary.
Courts across Ontario continue to operate under significant strain. Judges face heavy caseloads, limited resources and delays in the appointment of new and replacement judges. Backlogs remain a persistent concern.
These challenges are real, and the concerns expressed by judges about managing volume, maintaining control of proceedings and ensuring the efficient use of court time are understandable.
However, it is not clear that a return to in-person hearings addresses these pressures. If anything, it may compound them.
In-person attendance introduces additional scheduling constraints, reduces flexibility and increases downtime between matters. By contrast, virtual hearings offer a mechanism to manage volume more efficiently and to increase throughput without requiring additional physical resources.
Viewed in this light, judicial workload concerns may support, rather than undermine, continued reliance on virtual processes.
The case for in-person hearings — and its limits
There are, of course, arguments in favour of in-person proceedings.
One frequently cited rationale is that the formality of the courtroom environment encourages settlement. Another is that decorum is more easily maintained in person. Concerns are also raised about participants speaking over one another in virtual settings or failing to treat proceedings with appropriate seriousness. Finally, some point to the challenges faced by judges and counsel in adapting to new technologies.
These concerns are not without merit. However, they are not insurmountable.
Settlement is influenced by preparation, legal risk and the quality of advocacy, not solely by physical proximity. Virtual platforms can support structured settlement discussions, including judicially assisted conferences and breakout sessions.
Decorum is ultimately a function of rules and enforcement. Courts routinely regulate conduct in a variety of contexts. Virtual proceedings can be governed by clear expectations regarding camera use, speaking protocols and professional behaviour, supported by active judicial management.
Similarly, issues of interruption and disorder are matters of case management. Technology provides tools — such as muting functions and controlled speaking sequences — that can assist in maintaining order.
As for technological adaptation, the legal profession has historically evolved alongside new tools. Training, infrastructure investment and the appointment of technologically proficient decision-makers are practical responses to these challenges.
Technology and the administration of justice
Virtual hearings are not without limitations. However, perfection has never been the benchmark for procedural design.
The more relevant questions are whether virtual proceedings improve access, reduce cost and maintain fairness. On balance, the experience of the past several years suggests that they do.
The limitations of virtual processes are capable of being managed. The barriers associated with in-person requirements are more difficult to mitigate.
A question of institutional priorities
At its core, this issue reflects a broader question about the purpose of the justice system.
Is it designed primarily to accommodate institutional preferences or to facilitate meaningful access for litigants?
Virtual proceedings tend to emphasize accessibility, efficiency and cost reduction. Mandatory in-person attendance, particularly for routine matters, places greater weight on tradition and familiarity.
The choice between these approaches is not neutral.
Moving forward
A balanced approach is both possible and consistent with existing jurisprudence.
Trials and hearings where credibility is central may appropriately require in-person attendance. By contrast, short motions and procedural matters are well suited to virtual formats. Judicial discretion can be preserved to address exceptional circumstances.
Such an approach would align procedural choices with the underlying objective of improving access to justice.
The move away from virtual short motions represents more than a procedural adjustment. It reflects a shift in how access to justice is operationalized.
As highlighted in Steve Benmor’s analysis, access to justice is measured in practical terms — time, cost and the ability to participate.
Where those barriers are reintroduced without clear justification, the system risks moving away from, rather than toward, the objectives articulated in Hryniak and subsequent jurisprudence.
The question is not whether virtual hearings are perfect. It is whether abandoning them, in contexts where they have proven effective, advances the administration of justice.
Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers, whose focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including custody and access, separation agreements, child and spousal support, division of family property, paternity disputes and enforcement of court orders. For more information, visit www.RussellAlexander.com.
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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