Family lawyers deliver a wake-up call to the province

It should be presumed that all family court attendances (conferences, motions, etc.) in Ontario will be conducted remotely unless attendance in person is agreed to by all lawyers and parties. That was the key message delivered by a panel of family lawyers earlier this week at a virtual press conference that I was proud to be part of.

We felt the need to get this message out now that the government (or perhaps the court administration) has ordered that family law hearings should return to in-person hearings for many types of steps in a case, with virtual hearings allowed in only exceptional cases. I and other panellists stressed that is the opposite of what should be happening.

We have well over one thousand family law lawyers who have signed a petition directed to the Attorney General and Regional Senior justices to the effect that court attendances should be presumptively virtual.

“Remote hearings provide numerous benefits for clients and their lawyers,” said Nafisa Nazarali, managing associate lawyer at Russell Alexander Collaborative Family Lawyers.

“Virtual hearings are so cost-efficient. Pre-pandemic, a court date could take up the entire day; the clients would have to pay for that. With virtual hearings, they are only paying for just one or two hours. That is a real cost savings to our clients.”

‘An access to justice issue’

“This is an access to justice issue,” said Brian Galbraith, owner and founder of Galbraith Family Law. “This is not about conveniencing lawyers, the judiciary or anyone else. It’s about what is best for the public.”

He added that he had concerns about how virtual hearings would function when they were first held at the start of the pandemic, “but they worked out beautifully.”

I agree. But there is also a real health risk that has to be considered as COVID-19 has not finished with us, as much as we all wish it would be. Many litigants may be immune-compromised or have family members who are at risk. Why force them into cramped courtrooms when they are safer and enjoy better access to justice behind their computers at home?

The presumption that family law cases will be held in person is also not fair to lawyers.  It compromises clients’ choice of legal counsel. I’m 72 and someone on my team is in the midst of a high-risk pregnancy. Why should I be asked to risk my health, and hers, when there is a much safer and more efficient option available?

Web access is not a concern

Brian Galbraithå addressed concerns that some people don’t have access to the Internet for a virtual hearing. He pointed out that the World Bank estimates that 97 per cent of Canadians have access to the web, and those that don’t may also lack transportation access to get them to court for an in-person hearing.

“As Justice Fred Myers has said, virtual proceedings have proven to be one of the first significant enhancements in access to justice since 2014,” says Galbraith.

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Panellist Ram Shankar, founder of Shankar Law Office, agreed, pointing out that there are no buses, uber rides or subways in Grey County where he practises. “It’s not easy to obtain transportation to the courthouse for an in-person hearing,” he says, adding that is especially true for lower-income residents.

Ram urged the government to make family law hearings presumptively remote, noting that hundreds of case conferences in his area have been completed remotely in the last two years.

“If the system ain’t broke, why try and fix it by reinstituting in person appearances, which are more costly and cumbersome?” he asked. “If there are problems with virtual appearances, let’s explore a hybrid system. Ultimately the poor and disadvantaged sectors of society will be the ones to suffer.”

Virtual hearings provide a sense of safety

I raised the point about how virtual hearings are a godsend to victims of domestic violence, who no longer have to face their alleged abuser in person at the courthouse. The physical separation allowed by virtual hearings translates into safety and security for the victim, without sacrificing anything in the legal process.

Some people have raised concerns that virtual court hearings may involve children who wander into the room as sensitive issues about one parent or the other are being discussed. I agree they should not hear any of that, and it is up to the every parent to be responsible and prevent that from happening.

No matter what system we are using, it is the parent’s responsibility to make certain that they do not talk ill of the other parent when the child is within earshot, or involve the child in the court process.

Deals in the hallways can still happen

Some people in the legal community feel that in-person hearings allow opposing counsel the opportunity to reach a deal outside the courtroom through discussions. I pointed out that can still happen with virtual hearings, as responsible family lawyers are supposed to make every effort to find solutions for their clients in advance of attending court.

Russell Alexander, founder and senior partner at Russell Alexander Collaborative Family Lawyers, agreed with me, pointing out that virtual breakout rooms have become modern-day court hallways. He added that in the United States some jurisdictions have set up justice hubs, where people can go to access the computer technology they need to take part in a case.

He urged the government to set up a similar system here, using public buildings or government facilities.

Russell add that virtual hearings are fairer to those who require Legal Aid representation, as Lawyers in large urban centres can accept Legal Aid cases anywhere in Ontario under a virtual system.

“These people have a choice of counsel they have never had before,” he said.

This is our chance to emerge stronger

The problems caused by COVID came up again during the question-and-answer segment at the end of the press conference, when I was asked if I was a “Chicken Little” for raising alarm about the return of in-person hearings during the pandemic.

“Don’t you think that people like you and your colleagues here are just trying to spoil it all, for the majority of Canadians who are just sick and tired of this COVID mess?” the person asked.

I assured them that I don’t think the sky is falling, but that our legal system now has the chance to make great improvements based on the efficiencies learned during the pandemic. I mentioned something my wife taught me about the ancient art of kintsugi. It is a Japanese practice of using gold or silver to repair something like broken pottery, which highlights the breaks but makes the finished object more striking than before.

As with pottery, let’s not be afraid to repair and improve our judicial system so that we can emerge stronger than ever.