Starting April 2nd, Toronto family matters will require short motions to be heard in person
Since the COVID-19 pandemic forced Ontario’s courts to hold remote hearings for family law matters, litigants’ legal bills for those hearings have drastically reduced.
Many motion hearings only require a litigant’s lawyer to log onto Zoom for thirty minutes, maybe an hour, according to Russell Alexander, a Toronto-based divorce lawyer. But when the Superior Court of Justice in Toronto revives mandatory in-person hearings for short motions on April 2nd, family law lawyers expect those legal fees to balloon again.
“When we go to court in person for a motion… the lawyers have to travel to court. They need to wait their turn. It could be four or five hours for the hearing,” Alexander says. “So the clients are paying for five hours of lawyers’ time. The hearing, which may be $1,000 on Zoom, is now going to cost the client $4,000 or $5,000.”
That sentiment is echoed by Lorne Fine, founder of family law firm Fine & Associates, who says Zoom hearings give lawyers the flexibility to work on other matters rather than forcing them to wait in a courthouse until a hearing starts. “The cost would increase for the litigants just because you’re there all day,” he says, adding that many litigants also need to take time off from work, pay for travel, or arrange for childcare.
In an op-ed published earlier this month, Steve Benmor of Benmor Family Law Group estimated that litigants could pay between $4,000 or $7,000 in legal fees for a short motion “once travel, waiting and return time are factored in, depending on a lawyer’s hourly rate.”
Higher legal fees are just one of the access-to-justice issues that family law lawyers say will come with the April 2nd change, announced by the Ontario Superior Court of Justice in mid-February. While Toronto courts have largely been holding in-person proceedings for long motions – i.e., motions that take more than an hour to hear – shorter motions were being heard via Zoom. The practice direction change requires Toronto’s courts to start hearing all short motions in person, unless the court orders otherwise.
Parties can also request hearings to be held remotely, but such requests will only be granted for “clear and compelling reasons.” However, the announcement did not provide examples of such reasons.
Alexander says he worries the switch to in-person hearings will result in more delays and backlogs for family matters. “The biggest complaint we got about the family court system was that it was expensive and it took too long, and it was very paper-intensive,” he says. “We’ve managed to address those issues with the technology that we started using during and after the pandemic – so that’s remote hearings, digital filing.
“It enabled us to speed up the process because the hearings were only 30 minutes long or an hour as to spending a full day in court – five, six hours, including travel time and all the associated expenses.”
Alexander and Fine also expressed concerns about how the change will impact litigants facing domestic violence.
“When you have to attend court in person, victims need to face their spouse, and that could be quite traumatic,” Alexander says. “If we do it by Zoom, it’s much safer. They can have a support network with them, and they don’t have to face the spouse who committed the domestic violence.”
Fine says he’s seen numerous incidents in court where “assaults happened between parties.
“It’s a very high-charged environment when parties are arguing about parenting issues or arguing about property or support,” Fine says, echoing Alexander’s sentiment that one of the benefits of Zoom is that parties don’t need to be in the same space.
But both lawyers can guess why the court is moving forward with in-person hearings, too. Alexander says he’s spoken to judges who worried about the lack of decorum at remote hearings, citing issues with parties interrupting each other or dressing inappropriately.
Fine says in-person hearings are also more likely to lead to settlement discussions between parties. “There’s a different dynamic when it’s in person,” he says.
“Before when it was in person and people were in court for half a day or full day, the litigants were there, the lawyers were there, and it led to settlement discussions,” he says. “Either you would spend time discussing the issues with opposing counsel and maybe narrow the issues or resolve things.” It may be that Zoom hearings have reduced the number of settlements, though Fine clarifies that he has no numbers to back up that hypothesis.
Trevor Guy, a spokesperson for the Ontario Superior Court of Justice, told Law Times on Friday that the practice direction to revive in-person hearings as the presumptive mode of appearance was discussed last year during several meetings between the bench and bar.
However, Fine says he was unaware of these meetings and only learned of the practice direction when it was announced in February. In his op-ed, Benmor cites colleagues who argued there was “no consultation” with the family law bar. Alexander says he is unsure how much consultation took place between the bar and the court, and launched a poll this month to better gauge how other family law lawyers feel about the change.
As of Wednesday, he says he’s received more than 200 responses. Only about 10 percent of the responses are in favour of returning to entirely in-person hearings.
Guy did not immediately respond when asked which members of the bar participated in the meetings with the bench. He also did not address the access-to-justice concerns Alexander and Fine flagged, or respond to questions about why the court issued the practice direction and whether the court plans to expand the change beyond Toronto.
Fine says he’s not completely opposed to in-person hearings, so much as he wishes for more flexibility. Instead of having to meet the “clear and compelling reasons” threshold for a remote hearing, he proposed holding remote hearings when parties agree to them – an issue that can be worked out during case conferences. The courts could also have set days for Zoom hearings or bar parties from requesting remote hearings two weeks before a hearing is scheduled.
“There can be flexibility, but it doesn’t seem to be the case,” he says.
