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Refuting case for in-person court, point by point, part one | Russell Alexander

Tuesday, May 24, 2022 @ 2:48 PM | By Russell Alexander

Russell Alexander %>
Russell Alexander
Prior to the COVID-19 pandemic, there were many complaints about Ontario’s family court system. It was too slow. It took too long to get a hearing date. It was too expensive. It had been using a clunky, paper-based in-person advocacy system for literally hundreds of years.

In short: access to the justice system was broken. Albert Einstein has been attributed with saying, “Insanity is doing the same thing over and over again and expecting different results.”

In part one of this series, we examine why the push to return to in-person family court hearings is presumptively a bad idea. We do this by examining:

  • judges’ workload
  • mixed dockets
  • missing out on “hallway settlements”
  • access to on-site mediation and duty counsel.

In part two, we review:

  • formality of the process
  • access to justice
  • family violence victims
  • the pitch

Let’s start.

Once the pandemic was upon us, the family courts ground to a halt. Initially, all matters were adjourned, and then limited court access was arranged for emergency and urgent ones. The courts adopted a system called CaseLines, and pivoted slowly to a digital document-filing platform. The “Zoom divorce” was born.

Like it or not, massive changes to the family justice system were upon us.

Now, more than two years later, businesses and society are opening up again. We can fully see and appreciate the many efficiencies and opportunities that the pandemic has wrought. The system actually runs better and costs for divorcing families have been reduced.

Yet the family courts’ administration has been directed to return to in-person hearings for certain matters, on a presumptive basis. Virtual court is still available, but on a limited basis only. This seems like a huge step backwards, and in our view each of the points in favour of this hybrid approach can be easily refuted.

Judges’ workload

Most arguments in support of the return to in-person hearings focus on the family judges’ own capacity for hearing cases remotely and their ability to handle new technologies. Some judges apparently report they are less efficient in a remote environment, in terms of the number of cases they are able to hear each day.

But these complaints existed long before the pandemic. Returning to in-person hearings, without more, cannot solve those issues. Instead — and assuming the judges’ concerns are not merely “straw man” arguments — they can be readily addressed through better training of the judiciary and by providing improved technology.

Indeed, many of the less-traditional members of the judiciary have even praised the new technology, noting it is efficient, equally effective and reduces travel time to the courthouses for all participants.

Mixed dockets

A related (and arguably premature) concern is that a mixed family court docket, consisting of both in-person and virtual hearings, is untenable. As the argument goes, this will result in scheduling confusion.

Yet blended lists were already common prior to the pandemic. They are nothing new. In the past, family courts would often break for a teleconference with out-of-town counsel or witnesses, or conduct these hearings in their chambers. There were also virtual trials and hearings prior to the pandemic, in civil and criminal matters outside the family law realm.

So, the problem is not really the blend of hearing types, but rather the judges’ own comfort with them. Judges have already been provided with laptops to access Zoom hearings, and ideally they can continue to use technology to manage a mixed docket. They can simply have their laptops with them when they conduct hearings at the courthouse in person and retire to chambers when Zoom hearings are scheduled.

Missing out on “hallway settlements”

Another concern is that a virtual hearing model precludes litigants from exploring “hallway” negotiation and settlement opportunities. Historically, some judges have complained that litigants’ counsel do not always talk to each other prior to a case conference; that they must be directed to go into a hallway or anteroom to negotiate, then return to the case conference when they have narrowed the issues. By precluding this opportunity (as the argument goes), fewer cases will be settled, and the caseload will increase.

This may be a valid complaint about an all-virtual model, but it is not as black and white as it seems. Cases don’t typically get to court without any of the participants talking to each other.

First of all, the Divorce Act expressly requires parties to explore family law dispute resolution before they show up before a judge for trial or an interim hearing. Prior court orders or separation agreements often include dispute resolution provisions that force settlement options to be explored long before any court proceedings are commenced.

Lawyers usually phone each other, write letters and e-mails and fully explore mediation opportunities. Court proceedings are only required when there is a disagreement on a legal issue, a failure to follow procedural steps or an unwillingness to agree to a reasonable settlement.

All this means that by the time counsel arrive at the courthouse, ready for a hearing, the issues have already been reviewed extensively in advance. There is not much gained by continuing the dispute in the hallway.

Access to on-site mediation and duty counsel

In a similar vein, another concern raised about virtual hearings is that litigants will not have ready access to courthouse mediators, who might assist them in resolving their issues without needing a court hearing at all.

While this may be technically true, it ignores the fact that mediation never takes place on the courthouse steps anyway. It should be required prior to, or after, scheduled court conferences — and certainly not the day of the hearing. To do otherwise creates significant delay in terms of the screening process and the lineups that may form to get access to a mediator.

The other objection that is frequently raised is that litigants in a remote hearing model will not have access to in-person duty counsel, who often have offices right on courthouse property. But this again places the focus on the wrong spot; the better approach is to look at inefficiencies of the current system, which sees in-person duty counsel screening and assessing whether self-represented litigants meet the financial criteria to qualify for assistance. Having the litigants and the opposing parties physically stand around to await the outcome of this screening process is a poor use of everyone’s time — including the court’s own time and resources if it turns out the applicant does not qualify for duty counsel’s assistance.

In short, the use of in-person duty counsel actually increases expenses and creates inefficiencies. One clear improvement would see the creation of a virtual “office” or “waiting room” within the parties’ Zoom hearing, where duty counsel can silently monitor the proceedings and do other tasks at the same time. If called upon by the court for assistance, duty counsel and the self-represented litigant can be placed in a virtual breakout room, where the financial eligibility test can be applied and where the litigant can receive advice as needed.

There are a few more arguments proponents of in-person family court hearings espouse. In part two, we will examine these remaining arguments and illustrate why in-person family court hearing are presumptively a bad idea.

This is part one of a two-part series. Part two: Refuting case for in-person court, point-by-point, part two.

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers. He is a renowned speaker who has presented at several conferences in Canada and the United States. Alexander has created a team-based approach that focuses on clients’ interests with a mission to respect client goals and protect their rights by providing custom family law solutions.

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