To be, or not to be ‘in-person,’ that is the question

Law360 Canada (April 24, 2026, 1:27 PM EDT) --

Roslyn M. Tsao

Aaron Franks

To be, or not to be, that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles
And by opposing end them.

It may seem overly dramatic to compare the court’s dilemma about mandating “in-person” motions in family court to Hamlet’s musings about whether to suffer the hardships of life or succumb to the unknown of death. However, given the responses and straw-man arguments being erected against the Toronto Superior Court’s recent mandate for presumptive in-person short family motions, we dare say that some members of the bar view in-person court akin to the metaphorical “slings and arrows” of practice.

In-person attendance at court was the norm before COVID. Lawyers and clients made their way to courthouses in their local jurisdictions for conferences, motions and trials. Admittedly, the advent of Zoom hearings (necessity is, after all, the mother of invention) was practice-altering — much like the companion phenomenon of working from home (WFH). Those of us who were raised and tested in the courtrooms and hallways of the courthouse were, thankfully, able to adapt to Zoom appearances and the technological changes to e-filing and CaseLines (or whatever nom du jour).

However, despite the suggestions of some to the contrary, cases were not resolved more quickly or efficiently. Rather, it languished in the empty courtrooms, on the perfunctory and awkward Zoom attendances, and in the little boxes on Zoom meetings where judges could not really roll up their technological sleeves or apply the subtle (and not so subtle) judicial interventions the same way. The delays in scheduling conferences, long motions and trials in many jurisdictions are shameful. Some of this lies in government delay in filling judicial vacancies, but there are other reasons related to less in-person contact over the past five years.

First, lawyers are less prone to focus on settling motions unless there is an in-person court attendance. It is argued that Zoom motions save legal costs by avoiding travel time and waiting around in hallways. But those hallways are where compromises and settlements are negotiated. Better still, the costs of an in-person motion motivated settlement before lawyers and clients had to be in the courtroom.

The cost of not settling matters earlier is profound on all consumers of the legal system: the clients, the children, the judiciary, and the courts and staff. Historically — and yes, anecdotally (but based on many anecdotes) — cases were resolved or issues narrowed in the days leading up to an in-person motion and/or when lawyers and clients were in the same physical space with a waiting judge. The mandating of case conferences back to in-person attendances has resulted in more settlements than when presumptively by Zoom. It is much more productive for parties and counsel to engage in real time, face-to-face — not image-to-image.

Second, the “cost-saving” argument against in-person court is flawed. Some argue that virtual proceedings deliver “real-world savings” by allowing litigants to avoid taking a full day off work, driving downtown, paying for parking or taking the bus for 90 minutes each way.

But we would argue that clients are actually paying more in legal fees to resolve their matters on a final basis since Zoom court became the norm. Cases now last longer, without progress or meaningful judicial direction. The legal costs escalate slowly, like the proverbial frog in boiling water, instead of the sobering cost spikes for conferences, motions and questioning, which actually drive settlement.

The costs of bringing a motion, especially a short motion, should mandate a cost-benefit analysis between lawyer and client. It is precisely because one has to pay costs to a lawyer and take time off work that clients will opt against bringing speculative motions or settle issues inter-counsel instead of putting the issue(s) to an all-or-nothing motion. By taking those motions out of the litigation queue, we increase access to justice for motions that are actually intractable. The inconvenience of attending in person is not a barrier to justice — it is a natural check against the proliferation of unnecessary litigation.

It is notable that those who now oppose a return to in-person motions did not protest as vocally when some court jurisdictions limited the number of pretrial motions to one per party, to deal with the volume of motions — or mandated that all short motions are presumptively to be heard in writing. In terms of “access to justice,” these reactions are, in our view, far more significant.

The “one motion per party” rule has deleterious effects on fairness and access to justice. Once a motion has been “spent” by one side, the other side has every reason to act strategically, knowing that no further motion can be brought. Pre-COVID, there were no such limitations.

In a recent article (The Zoom paradox: When a judge’s words and his court’s actions collide), our colleague, Steve Benmor, suggests that the decision to eliminate Zoom hearings for short motions reflects an “in-camera institutional preference” rather than a rigorous balancing of convenience, cost and access to justice. This characterization is unfair. The institutional experience of the past five years has demonstrated that Zoom motions, while convenient, have not delivered on their promise of improved access to justice.

Court backlogs have grown, not shrunk. Settlement rates have declined. The judiciary’s ability to encourage resolution has been hampered by the limitations of a screen. The return to in-person motions reflects hard-won experience, not mere preference for the status quo.

A third and overlooked effect of Zoom (and here is where we see many of the same criticisms about WFH) is that there are some lawyers, generally five or six years of call and less, who have rarely — or never — argued an in-person motion. The art of lawyering is being lost: the negotiating in the hallways or (tiny) counsel rooms; advising and obtaining instructions from your client when time is of the essence; drafting Minutes of Settlement on the spot (by hand no less) — and critically — building relationships with opposing counsel in person. There is unquestionably a direct correlation between the increase in incivility of which counsel complain and the last six years of primarily Zoom attendances.

In addition, the opportunity to watch other counsel argue their motions before a judge is an excellent way for counsel to learn and develop their own style. That is how lawyers learn to become lawyers and are not intimidated by the courthouse. Counsel do not “hang around” before or after Zoom motions to watch experienced counsel apply their craft.

Motions are not merely a procedural hurdle or inconvenience; motions are often a step that directs resolution of the entire case.

Finally, Mr. Benmor’s assertion that Justice Fred Myers’ decision in Worsoff v. MTCC 1168, 2021 ONSC 6493 about the virtue of Zoom hearings is “paradoxical” or “ironic” to the recent mandate for in-person motions is misplaced. Justice Myers acknowledged the shortcomings of virtual proceedings: some participants lack reliable technology, there are real concerns about witnesses being coached off-screen, poor virtual decorum and a lack of professional courtesy. These are not trivial concerns. Moreover, Justice Myers was careful to note he was not discussing trials where the judge must assess credibility and demeanour.

But Mr. Benmor’s dismissal of short motions as mere “procedural steps” where “the evidence is in the paper record” overlooks the reality of missed settlement opportunities when parties and counsel are together. In family court, even short motions often involve contested facts about parenting, child welfare and domestic circumstances where judicial assessment of the parties matters greatly.

While we do not advocate slavish adherence to the past, nor do we promote change just for the sake of change, we can revisit past processes that may still be effective. As is currently the case, we hope that the court will continue to accommodate appropriate situations where counsel requests to have the hearing by Zoom. It is here that we echo Gary Joseph’s recent comments that there is a benefit to a “meaningful opportunity to connect with your client in person.”

If a motion, or other step for that matter, is “contested” or “important” to a client’s case, this implies the necessity of an in-person court attendance to either argue the motion or attempt resolution. Zoom court and in-person court can and should co-exist. Counsel need to explain the system and the costs to their clients. A move back to in-person motions should free up court time overall if there are fewer argued motions (due to cost/benefit analysis) or parties are more able to settle at the courthouse.

In turn, this reclaimed court time will permit more timely case conferences and hopefully lift the one-motion restrictions. In short, access to justice is not just about a motion attendance — in family law, the impact of in-person participation in the very judicial system, and with the very judges whom our clients believe will “solve” their case, cannot be overstated.

So, why not restore the lost collaboration between counsel, judges and the gravitas of the courthouse, which has, historically, more effectively shepherded clients to earlier settlement. We can (re-)embrace in-person court and advocacy and the unspoken pact with our judiciary to resolve our clients’ disputes before all the ills of prolonged litigation do damage to children and families. It may require us to schedule fewer court appearances in a single day, especially at different courthouses, which is probably not such a bad thing for family law lawyers who are undeniably overloaded.

Roslyn M. Tsao and Aaron Franks are partners at Epstein Cole, one of Canada’s pre-eminent family law firms. Roslyn and Aaron practise exclusively in family law as litigators, mediators and arbitrators. They avail of litigation and other ADR, in tandem, to advocate for their clients in matters that include complex high net worth, parenting and interjurisdictional issues. Aaron is the recipient of the 2026 Annual Mary Lou Benotto Award for Excellence in Family and Law, and Roslyn was the recipient of the 2022 Award of Excellence in Family Law in Memory of James McLeod.

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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