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COVID-19 court closures: What to make of it and what to do | Gary Joseph

Thursday, March 19, 2020 @ 8:22 AM | By Gary Joseph

Gary Joseph %>
Gary Joseph
At the risk of some serious push back, am I the only one upset by the Supreme Court of Justice shutdown? We are facing a serious health crisis that cannot be understated. We all need to implement safe office procedures, limit personal contact and perhaps more but we also have to continue to represent families who cannot sit on the sidelines while the courts are closed. Many are in need of support and cannot bring motions. Many are not seeing their children and cannot seek access. What happened to telephone conference calls, Skype and Zoom access? Do we simply park all our matters that are urgent but will not meet the test for urgency?

I am told that on Monday, a Superior Court of Justice judge told her/his court that the bar will be very high. The Ontario Court of Appeal has suspended matters for three weeks, but telephone conferences are available and parties to appeal also have the option of selecting that their appeal be “heard” in writing. Why has the Superior Court of Justice basically (not entirely) suspended all matters till June 1? Where are similar option for litigants in the Superior Court? And don’t expect to have matters heard June 1 — that is just a date to start to reschedule.

Yes, we can all double down on efforts to settle cases, but the courts need to have some availability beyond “urgent and emergency” during this crisis. We need to speak up or perhaps I am simply voicing an unpopular point of view as is my habit. Our clients are perplexed and quite frankly lawyers are being left to source out creative solutions for families that cannot wait. I understand that our judicial leadership was and is faced with an unprecedented health crisis, but our courts are an essential pillar of our democracy and a blanket shutdown or even extremely limited access is of grave concern to the family law bar and our clients.

Perhaps this is a much-needed wakeup call for our government. Perhaps this is the wrong time to be expecting a recognition that for too long justice and our court system has been chronically underfunded, but that is the case. Had we invested in current technology that would permit fully electronic filing and remote access appearances in family law, this current crisis would have a far less critical impact on our clients. I fear that this blanket shutdown will further erode the respect that the general public has in this institution.

As has been noted by a respected Court of Appeal justice, there is perhaps no area of the law where the public more frequently intersects with the justice system than family law. Imagine what the impact of an institution’s locked door has on those who really need intervention but perhaps cannot meet the high bar of urgency and emergency. The practising bar is well aware of the past difficulty in satisfying a court of such urgency that a matter could proceed to a motion in advance of a case conference. Given the shutdown and the new test, one would expect even greater difficulty.

I am proud to say that members of the family law bar are rallying to try to plug the hole left by closure. I also readily acknowledge the fact that many judges are making serious efforts to make themselves available during this shutdown. Mediators and arbitrators are making arrangements, if not already in place, to hear matters remotely and lawyers are organizing litigation management co-operatives to assist each other. We will get through this but not unscathed. Clients will incur unnecessary costs and justice will be stained further in the eyes of the public.

When, not if, we emerge from this health and economic crisis I sincerely hope that justice and court administration will be recognized for what it is, an essential pillar in our democracy that cannot be ignored by government and taxpayers alike. For every setback there is an opportunity.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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