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Court process in time of COVID-19: What we know so far

Tuesday, April 14, 2020 @ 2:07 PM | By Kathryn Hendrikx


Kathryn Hendrikx %>
Kathryn Hendrikx
We start with a short recap of what happened to the Ontario courts in March 2020.

On March 15 the world changed for all lawyers in Ontario. With one announcement from Chief Justice Geoffrey Morawetz of the Superior Court of Justice in Ontario, the legal profession was turned on its ear. No longer were lawyers able to access the courts as usual. The move to implement provincial emergency protocols due to the COVID-19 pandemic began. Note that the courts have never been closed. However, they have strictly reduced cases being heard.

The first Superior Court of Justice Notice to the Profession was sent on March 15, and effectively stated that all court processes and appearances would change. What remained operational were issues related to public health and safety, family and child protection and civil and commercial matters. The practice direction included the catch-all statement of “any other matter that the court deems necessary and appropriate to hear on an urgent basis.”

Urgent family law matters were limited and defined as matters relating to: requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order); the well-being of a child including essential medical decisions; wrongful removal or retention of a child; failure to abide by existing court orders; financial stability; and specific child protection matters.

Fast forward four weeks and lawyers are now using Zoom conferencing, exchanging virtual tips and congregating online to discuss alternative resolution processes. The various associations and the Law Society of Ontario have provided regular and updated information. Mediation and arbitration agreements are being adapted and expanded to include “litigation management agreements.”

The legal community responded in droves in the wake of the pandemic. However, lawyers remained worried about the stark court restrictions.

To allay concerns, Justice Morawetz sent a second announcement on March 27, bearing the news that the administration had sufficiently triaged the court restrictions such that an expansion of the role of the courts would be contemplated and announced on April 2. Immediately the speculation started. Family lawyers asked about expansion of the definition of urgency. Criminal lawyers were tweeting about bail hearings. Civil litigation lawyers asked about confirmation forms, serving protocols and pre-trials.

On April 2 another Notice to the Profession was released. It included updates for civil, criminal and family law matters. The family law update included an expansion of processes specifically tailored to Ontario’s eight distinct regions. The family law expansion was effective April 6. The takeaway message was that expanded services varied by region and they were not uniform across the province.

Processes including case conferences, consent orders submitted by 14b motions and some settlement conferences were regained, region by region. This was an elegant solution allowing the regions to serve both lawyers and litigants.

The court also outlined the process to schedule family hearings. All pertinent information, including the required materials, time allocation and conference information was provided. The court further confirmed that all hearings would be through video conference or telephone conference call. The court left the door open to other remote hearings as well.

The court allocated specific e-mail addresses for each type of process. For example scheduling an urgent motion in Toronto could be filed by e-mail at: FamilyTrialOffice-SCJ-Toronto@ontario.ca. There is an e-mail address for every jurisdiction and process in the notice.

Chief Justice Morawetz also stressed co-operation and a flexible approach directly in the April 2 notice, stating: “For the Court’s processes to be successful, judges and masters will require lawyers and litigants to act co-operatively and to be flexible to achieve a timely, just and fair hearing. Counsel and parties can anticipate that the judiciary will, in turn, make every effort to respond with flexibility and creativity, where feasible and appropriate.”

The court went further and answered many of the questions asked by lawyers across Ontario. For example, how can I obtain an issued and entered order? Answer: COVID-19 orders are deemed effective immediately when the endorsement is made. Importantly, the Law Society of Ontario established the Emergency Referral Line, accessed through the Law Society Referral Service. This service provides 30 minutes of time for self-represented litigants to access critical information for a lawyer.

There have been a multitude of disruptions to lawyers’ daily lives. Many of us are isolating and social distancing. Many of us are self-employed and must manage our caseloads as well as our solo, small and not-so-small businesses. The change in court protocols are the response to an “outlier event” that could not have been imagined a mere year ago. And yet, in four weeks, the court has been able to mobilize sufficient resources to kick start and then subsequently supplement court processes, arising from the pandemic.

We are all aware of the lack of technology and modernization in the court system. This emergency has taught us that despite not having the “rules” in place, rules and processes can be drafted and implemented in four weeks if needed. We can now see the adaptability of lawyers in the face of an emergency, who were galvanized to find workarounds and solutions. As the saying goes, “Necessity is the mother of invention.”

Kathryn Hendrikx, of Hendrikx Family Law, has a passion for family law. She is trained in alternative dispute resolution, mediation and collaborative family law methods. Hendrikx helps families with issues such as custody and access of children, parenting plans and high conflict separations. She is the past president of the Women’s Law Association of Ontario and has been quoted in publications including the Globe and Mail.

Photo credit / pedrosala ISTOCKPHOTO.COM

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