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

Tuesday, May 31, 2022 @ 1:57 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.

In part one, we refuted some of the arguments in favour of a return to in-person family court hearings by looking at things like judges’ own complaints over workloads and the ostensible missed opportunities to achieve “hallway settlements” of cases.

In part two, we will continue to dissect some of the remaining objections and offer some thoughts on why the push to revert to in-person hearings is presumptively a bad idea.

Formality of process

One pithy argument in favour of returning to in-person hearings centres around formality and court decorum. The feeling is that the experience of actually being inside a courthouse, and physically in a courtroom before a judge, can have a subtle but significant influence on the parties to any litigation. Plus, the court itself has a toolbox of on-the-fly options to encourage settlement between the parties.

Yet, in our view, any benefit occasioned by presumptive in-person hearings are far outweighed by the cumulative advantages of virtual hearings.

For one thing, the cost savings of Zoom conferences are considerable. There’s no travel, no parking and no traffic. Fuel costs and inflation make travelling to and from court much more expensive. There’s no more sitting around for several hours — or the entire day — waiting for the hearing to begin. And from the clients’ perspective, there is no need to pay for their lawyers to do all that on-site waiting.

Plus, the option of virtual hearings also improves litigants’ access to legal representation of their choice. With no geographical constraints, clients can choose their preferred lawyer from anywhere in the province. Lawyers will also be more readily available for the currently underserved northern and rural communities. Clients with legal aid certificates will be more likely to secure a lawyer.

Access to justice

The other common refrain about the need to return to in-person hearings is that not everyone has access to technology. The theory is that virtual hearings might shut out those who are economically disadvantaged and who may need the family justice system more than most.

While this might be a valid concern, it is likely not widespread. Most people can access a case conference through Zoom — even if it is with the assistance of a friend, family or employer. A recent study indicated that 97 per cent of Canadians have access to the Internet. Justice “hubs” can be set up at libraries, the Superior Court of Justice’s Family Law Information Centres or in empty courtrooms for those parties who cannot access the required technology. There are many other innovative ideas to address the issues of technology, connectivity and access.

For some participants, the use of virtual hearings will ease the psychological and emotional toll of having to go through the family justice system in the first place. Especially in high-conflict divorce and parenting time matters, both the spouses and children are usually fraught and uncertain. Going to court in person, confronting an ex-partner, dealing with conflict and facing the many lingering health risks from the pandemic — these can all have a huge negative impact on the individual parties.

In contrast, remote hearings inherently put physical distance between them, and can ease some of the stress involved in the process of resolving their issues. The parties can conduct their hearing from the safety and privacy of their own homes.

Victims of family violence

In a related vein, advocates for victims of family violence have also raised concerns over how the family court system should go forward, in terms of hearing options. As reported in the legal media recently, a women’s shelter has argued against the continued use of virtual hearings. We are familiar with this organization and have contributed both our time and money to support their cause. However, we disagree with their arguments, and in our collective experience victims of family violence are much better served and protected when their family court proceedings are virtual.

As one of the arguments goes, when a hearing takes place behind a set of computer screens, a family court judge may not be well-positioned to scrutinize the dynamic between the abuser and victim, to watch for indicators of ongoing abuse, intimidation and coercive control. This lack of court awareness and protection can discourage vulnerable abuse victims from asserting their rights and getting the legal support they need.

But in our experience, remote technology can actually heighten the protection afforded to such vulnerable victims, on the balance. For one thing, family court judges have vast depths of experience in discerning the demeanour and credibility of participants and witnesses. This is not automatically diminished simply because the assessment takes place online.

In fact, it has been suggested that the close-up nature of the images on a computer monitor can allow seasoned judges an even better look at the participants. They can spot subtle facial nuances and credibility “tells” more readily than ever before.

Secondly, remote hearings can regulate and prevent litigants who perpetrate domestic violence from using the litigation process to exact even further psychological harm on their victims, through in-person intimidation and harassment. Simply put, an abuse victim can avoid being in the same room as their abusive ex-partner and his or her family. There is no fear of in-person confrontation on the courthouse steps.

That was the wind-up — now the pitch

The family court system is at a crossroads; it can take a step backwards, or it can move forward and continue to improve in all respects — the most important one being improvements to access to justice.

In light of the COVID-19 pandemic, the judiciary and the stakeholders in the system’s administration certainly deserve our extra gratitude. They have navigated an unprecedented crisis and have worked tirelessly to keep our system running.

But now that the crisis seems to be on the wane, it’s time to seize the opportunity to make long-term improvements. Simply reverting to old processes and requiring participants to return to in-person family court hearings will be an opportunity lost. It may even lead to inertia and the possible collapse of an already overloaded system.

Albert Einstein was attributed with saying, “Insanity is doing the same thing over and over and expecting different results.” In our respectful opinion, the only real and effective way to improve access to justice is not merely by making remote hearings a permanent fixture of the system, but by making it the presumptive model for all family law matters.

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

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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