Lawyers suggested that the courts should focus on fixing the glitches with technology
Ontario family lawyers held a virtual press conference on Tuesday to discuss the adverse effects of the Ontario Superior Court of Justice notice ordering the return to in-person court attendance for most proceedings.
In the conference hosted by Russell Alexander, senior partner and founder of Russell Alexander Collaborative Family Lawyers, the lawyers maintained that reverting to in-person from virtual proceedings will mean less access to justice and higher legal costs for many clients and suggested that the profession should focus on fixing the glitches with technology.
Law Times previously reported that a group of family lawyers, in a petition created by Alexander and directed to the Chief Justice and Attorney General of Ontario, opposed the court’s decision to return to in-person hearings. The petition has reached 1,025 signatures.
Moderated by Shannon Martell, community engagement and events specialist at Russell Alexander Collaborative Family Lawyers, the panel examined time efficiency, the legal environment, and self-represented litigants. They shared a similar view that all family court hearings should be remote presumptively and attended in person if both parties’ counsel agrees or if directed by the judge.
Alexander said the view that it is easier to travel to court, especially in northern and rural communities does not hold weight because many people can access technology through friends, family members, employers, and municipal government offices.
Before the pandemic, a significant issue was the slow pace of the family court system, and Alexander said technology addressed most of the problems because it sped up the process. He said the profession could be more innovative in its approach to technology. For example, create justice hubs.
“All the Superior Courts have family law information centres; we can use those facilities or even empty courtrooms to provide access to the technology that is needed. We can use the public library to access an internet connected device or other ministries with the Attorney General building some locations to set up these justice hubs.”
Family lawyer Ram Shankar practices predominantly in Ontario’s Bruce and Grey counties and spoke about the experience of northern and rural communities. Shankar said there are no buses, subway stations and taxi services to make commuting easy to the courthouse with lawyer litigants living away.
Shankar said it is challenging for financially vulnerable people involved with the Children’s Aid Society to obtain transportation, especially in the fall and winter when weather conditions can be hazardous.
“It is unfair to ask lawyers and litigants to appear in person when these matters may just as well be completed successfully remotely,” he says. “For the last two years, we’ve had hundreds of conferences from locations in rural and northern communities completed successfully.”
Legal Aid does not cover lawyer transportation or waiting times costs for clients living in rural areas, and Shankar said that with a return to in-person proceedings, many lawyers would stop accepting legal aid cases.
“Ultimately, the poor and disadvantaged sections of society will be the ones to suffer. Consequently, access to judge justice which is the most important factor for our judicial system will also suffer.”
He said it is critical that family courts embrace technology and return to virtual proceedings but also noted that there is no secure internet in numerous rural courthouses for lawyers to submit and share evidence through CaseLines.
“If there are problems, let us explore a hybrid system or think of solutions as to how to rectify glitches within the virtual world rather than going back to an outdated mode of appearance, which is in person for everything.”
Nafisa Nazarali, the managing associate lawyer at Russell Alexander Collaborative Family Lawyers, said remote hearings are cost-effective. Before the pandemic, lawyers often spent their entire day waiting to hear their case in the courthouse, and clients paid for that. Clients sometimes also lost wages for a full day of work if needed in court.
With remote hearings, Nazarali said clients pay legal fees for an hour to two instead of four to six hours and save on gas, parking, and childcare. “With the advent of virtual hearings, lawyers and their clients can log in at the time provided by the court and can be heard almost immediately.”
Virtual hearings are also environmentally friendly, and clients have reduced disbursement fees as lawyers no longer print documents to file with the court as the profession is 100 percent paperless.
Nazarali says a primary objective of the family law rules is to enable the court to deal with cases justly by ensuring the procedure is fair, saving expense and time, handling the case appropriately to its importance and complexity, and providing proper court resources.
“Remote hearings have allowed the court to meet this primary objective by dealing with cases in the most cost-efficient way and moving back to a system where in person is the norm rather than the exception is the regressive move, given the benefits that are afforded by virtual hearings.”
Family lawyer Brian Galbraith said returning to in-person proceedings is an access to justice issue and that increased costs will significantly impact the court system.
“When a lawyer has to charge for five hours, plus commute time, it makes every step in the process very expensive for clients and so you’re going to see more self-represented [litigants] and we know that that certainly slows down the judicial process.”
Galbraith also referenced Justice Fred Meyer’s comments that virtual proceedings have significantly enhanced access to justice. “There’s going to be some hiccups when we’re dealing with technology. That’s normal but it’s still a vast improvement over attending in court,” Galbraith said.
Family lawyer Gene Colman spoke about the health, safety, and privacy implications of returning to in-person. Colman said COVID-19 is not over and the new directive to return to in-person proceedings ignores the six-wave, putting many litigant lawyers who may be immunocompromised or have vulnerable family members at risk.
“COVID is just not finished with us as much as the government, chief justices and regional senior justices would like it to be finished. We would all like to be finished. Forcing lawyers and their clients into in-person scenarios is a blatant charter violation with respect to security of the person.”
Colman said virtual proceedings also protect family violence victims, recalling a former client murdered in front of her kids by her husband after assuring him that she was not a victim of domestic violence.
He said virtual hearings are a small but important contribution to the physical security of abuse and domestic violence victims because it creates a greater sense of safety and privacy.
Some lawyers have suggested that virtual hearings could inadvertently involve children while the parent is on Zoom. However, Colman said parents need to ensure that remote court hearings remain private.
“It is a parent’s responsibility in family law cases to make certain that they do not talk ill of the other parent or involve the child in the court process.”
Colman also opposed the view that reaching a conflict resolution is easier with in-person proceedings than with Zoom. “Cases do not just end up in court with no one talking to each other,” Colman says. “This argument advanced by some, including judges, is not sensible. The Divorce Act, family law rules, and case laws require parties to explore family dispute resolution prior to court…Zoom hearings do not get in the way of that. In fact, they complement and promote better communication.”