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Hot Off the Presses: Ontario Judge Rules “Clear and Compelling Reason” Needed for Change to Virtual Hearing

Written by Russell Alexander / (905) 655-6335

Hot Off the Presses: Ontario Judge Rules “Clear and Compelling Reason” Needed for Change to Virtual Hearing

In a brief but impactful ruling in a case called Cousins v. Silbourne, Justice Ricchetti of the Ontario Superior Court of Justice made a pronouncement that has arguably shifted the landscape around the (non-) availability of virtual proceedings in Family Law matters.

And perhaps the most surprising part of the ruling? The parties’ own preferences may not matter.

By way of background:  The parties in a Family law dispute had an in-person settlement conference scheduled for the end of April 2022.  A lawyer representing one of them came down with COVID-19.

The parties therefore agreed – on consent – to proceed with their hearing remotely (i.e. by Zoom).  They wrote to the court asking for a simple endorsement of that change, and scheduled a conference call with Justice Ricchetti which took place April 19, 2022.

Seems like it would be an easy rubber-stamped ruling.  But despite the parties’ consent, Justice Ricchetti nonetheless refused to let the matter proceed imminently by virtual means.   Instead, the matter was adjourned to a later date in May, so that the hearing could proceed in-person.

Given their own agreement to proceed remotely, the parties and their lawyers were no doubt taken by surprise by this rejection. In explanation, Justice Ricchetti started by pointing to the court administration guidelines that had been recently issued to cover the Ontario Superior Court of Justice (and which took effect that very same day of the conference call – April 19, 2022).  Titled Guidelines to Determine Mode of Proceeding in Family”, that document advised the public and directed Ontario Family Law courts themselves that there is a presumption in place:   That Settlement Conferences are presumptively to proceed in-person – not by virtual means.

Justice Ricchetti then explained some of the practicalities behind that presumption:

One might say, what is the difference if hearings are scheduled in-person and/or virtually? Without getting into the rationale for the presumptive mode of hearings, some types of hearings are more effective in-person or where there is a final determination being made by the court. But there is a further difficulty. Having the same judge hear some matters in-person and some virtual hearings from the same daily list is simply not doable. There are not sufficient judges, courtrooms or court staff to have separate lists dependent on the mode of hearing. Hearing a mixed list is problematic for judges, staff, counsel and parties for many reasons including that time estimates for hearings are not always reliable and technology issues sometimes arise.

According to Justice Ricchetti there were other principles dictating the practicalities behind the choice of method for hearings, namely:

  • The court has limited resources (namely courtrooms, court staff and judicial resources);
  • Scheduling takes place many months before the actual court hearings, and often involves changes and adjournments; and
  • Scheduling is more complex, and it is difficult to juggle the courts’ resources to accommodate changes to the presumptive mode of hearing.

With those challenges in mind, Justice Ricchetti said:

As we transition from pandemic modes of hearing to the Guideline presumptive modes of hearing, conflicts and rescheduling will be required. Where a change in the presumptive mode of hearing is necessary, the Court will and must do its utmost to accommodate changes to the modes of hearing.

Perhaps the most surprising aspect of all, was Justice Ricchetti’s statement that the consent of the parties is not, by itself, sufficient grounds to change the presumptive mode of hearing.  Rather, according to the judge, “a party or party will have to demonstrate a clear and compelling reason to change the presumptive mode of hearing”.

No doubt in recognition of the importance of the ruling – issued the same day as the Guidelines came into effect – Justice Ricchetti offered the following list of factors that any court must take into account when ask to determine whether the presumptively in-person mode should be cast aside in favour of virtual proceeding [with emphasis in the original]:

  • The prejudice to a party if the matter proceeds by the presumptive mode (which does not mean “inconvenience” to a party or their lawyer, nor a reasonable addition cost due to some travel)
  • Why the different mode of hearing would be more effective in the circumstances of the case;
  • The importance of the hearing to the proceeding;
  • Other relevant matters that establish the need to change from in-person hearings.

Justice Ricchetti also clarified that the parties will have to demonstrate “inability of or serious hardship to counsel or a party not to attend the hearing in the presumptive mode of hearing.”  This was not limited to COVID-19.   The party or parties will have to address “why an adjournment to accommodate the demonstrable inability or serious hardship should not be granted”.

So what are the takeaways of this timely and perhaps-unexpected ruling?

Cousins v. Silbourne is one of the first decisions to consider the Ontario court Guidelines that took effect April 19, 2022.   Given the timing, it seems the courts have been prepared for on-consent requests by the parties themselves for virtual hearings, and have possibly decided on a “template”-style endorsement denying such requests – except where there is a compelling reason.   With appropriate modifications for the specifics of each case, it is likely that judges in upcoming Family Law cases will follow suit.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.