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Why go back to the courthouse? | Gary Joseph

Wednesday, October 20, 2021 @ 8:27 AM | By Gary Joseph

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Gary Joseph %>
Gary Joseph
Let me begin by saying that I very much miss in-person court. I miss the interactions with my colleagues at the bar. I miss the formality of the courtroom. I miss the vibe of the courthouse. I even miss “robing up.” Further, I believe that the courthouse is a symbol of our democracy, the rule of law which we all should cherish, and I love to be a participant in the role it plays in our society, but … as we move closer to in-person attendances, I ask why go back?

I have conducted a number of family law trials during COVID by Zoom. It is a challenge for many reasons. The inability to face a witness during cross-examination and to fully observe body language and other credibility clues is a concern as is the often-frustrating technological failures, loss of signal, screens freezing and background sounds that at times frustrate Zoom court.

During a recent court attendance, a justice of the Superior Court commented to me that a recent five-day trial took nine days because of Zoom and technological issues. I agree Zoom extends the time for trials especially those heavy on documents. So, let me confine my comments to follow on court matters other than trials. For most family law files, trials are the exception not the rule, in any event. The majority of “court work” on most family law files is in conference or on motions.

As I have written before, COVID pressed the accelerator down hard on the move to digital filings and on the transformation of our “1970s” justice system to a more modern electronic-based structure. Caselines, the document sharing platform for file management, is a wonderful step forward as are more scheduled court appearances for motions and conferences. The court staff and our judges have rapidly adapted to these changes. We are now rapidly moving to a paperless system. Better late than never.

Justice Fred Myers of the Superior Court of Justice recently commented favourably on virtual proceedings in the case of Worsoff v. MTCC 1168, 2021 ONSC 6493:

 “Virtual proceedings have proven to be one of the first significant enhancements in access to justice since Hryniak was decided in 2014.”

Justice Myers also commented on the ease, convenience and “accompanying cost savings” of virtual proceedings. He felt these factors trumped (sorry for the use of that word, his, not mine) any factors mitigating against, in the case before him, virtual discoveries. He specifically noted that he was not commenting on trials.

I wholeheartedly agree with Justice Myers. Our family law clients are better able to access justice at more reasonable costs when we engage virtual process for motions and conferences. Less time lost at work and less concerns with childcare are also important byproducts of virtual court. While I personally enjoyed “hanging around court,” chatting with colleagues, it is the clients’ interests that must be foremost in this debate. I am convinced that they are better served in conferences, questioning (discoveries) and motions by virtual appearances.

There, of course, may be exceptions to this broad statement and the system should accommodate those matters where in-person is necessary even in the conference or motion setting. However, for the most part, I urge that any return to in-person court be limited to trials and perhaps long paper-intensive motions. For all other attendances let us welcome a positive development flowing from the misery caused by the COVID pandemic. Let us stay virtual and better serve our clients, the consuming public. From the prospective of my practice and my office, our clients are pleased with virtual court. Members of the family law bar, please speak up now so that our voices are collectively heard.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

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