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| Steve Benmor |
The announcement is located here.
The directive applies to the full spectrum of family law motions under one hour: parenting disputes, child support, spousal support, the sale of the matrimonial home, financial disclosure and any other issue arising from separation.
The geographic reach of the new rule is vast. All divorcing families within the boundaries of Toronto’s jurisdiction — stretching east to Markham Road, west to Highway 427, south to Lake Ontario and north to Steeles Avenue — who require a hearing before a superior court judge will now be required to attend in person at 361 University Avenue in downtown Toronto.
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On the opposite side of the debate are those favouring virtual hearings. This group argues that the economics of in-person motions does not justify the change. Because lawyers can conduct motions entirely from their offices or anywhere remotely, the time billed to the client was limited to preparation and the hearing itself, whereas under the new in-person mandate, a client will now be required to pay for their lawyer’s travel time to and from the courthouse, courthouse waiting time and any attendant delays — time that previously did not exist as a billable cost because the lawyer never left the office.
The argument is that a large amount of time is wasted in travel and in waiting to be heard. A motion listed for one hour can result in a wait of anywhere from one to five hours before the motion is called, depending on the day’s list and the presiding judge’s schedule. Every one of those waiting hours, plus travel time, will now appear on a client’s legal bill.
To put this in concrete terms: a motion that might have cost a client $1,500 to $2,500 by Zoom — covering preparation and the hearing itself — could now cost $4,000 to $7,000 or more once travel, waiting and return time are factored in, depending on a lawyer’s hourly rate. For families already stretched to their financial limits by the costs of separation, this is a devastating blow.
The move to in-person motions will also affect victims of family violence who will now be required to face their alleged abusers in the courtroom — and in the hallways of the courthouse — adding to their sense of danger and fear.
The announcement arrives at a moment when Ontario’s family courts are already grappling with an epidemic of self-representation. Studies and court records consistently show that nearly two out of every three family law cases involve at least one party — and frequently both parties — who do not have legal representation because they simply cannot afford a lawyer.
Critics of the new directive argue that eliminating Zoom hearings will only worsen this already grave situation. Zoom technology allowed both lawyers and unrepresented parties to participate in their hearings from home, from work or from a library — without the added burden of downtown travel and lost income from time away from employment. That accommodation will now be gone by default.
Those in favour of in-person motions argue that the rate of settlement will rise. Those opposed argue that there was no consultation with the bar and thus far there is no evidence to justify such an assumption. They argue that case conferences are the time to settle matters and that if they cannot reach a settlement at a case conference, then a motion must be heard and decided — which is not the time to settle. They argue that on a motion, each side presents their argument in 20 minutes and the judge decides the matter in under an hour, and that the travel time and wasted waiting time is not justified.
Family law lawyers know all too well that short motions often are the harbinger of final settlements since the outcome on a motion can signal to the parties and lawyers how a trial judge would rule on the matter. Outcomes of motions tend to have a chilling effect on the case. But if the cost will rise, then it is conceivable that there will be fewer motions and more trial.
The question being asked is a pointed one: in an era when technology has provided an effective, affordable and demonstrably workable solution to courthouse access, why is the court retreating from it? After the pandemic forced Ontario’s courts to rapidly adopt Zoom technology, the transition to virtual motions was successful. Lawyers adapted. Clients benefited. Courts remained functional. The advent of remote hearing technology represented a historic opportunity to permanently reduce the cost of accessing the family justice system. The court’s announcement suggests that opportunity is now being set aside in favour of a return to the pre-pandemic status quo.
Access to justice in family law has long been a subject of public policy concern in Ontario. This announcement is expected to bring renewed urgency to that conversation and a consideration of how family court justice is to be dispensed.
Steve Benmor, B.Sc., LLB, LLM (family law), C.S., is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a certified specialist in family law and was admitted as a fellow to the prestigious International Academy of Family Lawyers. He is regularly retained as a divorce mediator, arbitrator and parenting coordinator. As a divorce mediator, he uses his 30 years of in-depth knowledge of family law, courtroom experience and expert problem-solving skills in divorce mediation to help spouses reach fair, fast and co-operative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court. Read his resumé here. He can be reached at steve@benmor.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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