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The Case for Not Returning to In-Person Hearings (Part 1)

Written by Russell Alexander / (905) 655-6335

The Case for Not Returning to In-Person Hearings (Part 1)

Before the COVID-19 pandemic, the Ontario Family Court system was certainly not perfect.   In-person hearings were always the norm, and judicial resources were inadequate. Scheduling was a nightmare, and there was a hefty backlog of cases.

It was a justice system in disrepair.

As something of a silver-lining, the pandemic-related restrictions and lockdowns changed some of that.  Most notably, it moved permanently to an all-electronic filing system, and embraced the case management technology known as CaseLines. In-person hearings were also replaced with teleconferenced remote hearings, to accommodate physical distancing restrictions.  The “Zoom divorce” was born.

Now that the crisis is starting to ease, we have seen the benefit of these improvements first-hand. Yet effective April 2022, the Ontario Family Courts have just been directed to presumptively return to in-person attendance for specified hearings (including case conferences, settlement conferences, and trial management conferences). The use of “presumptively” signifies that in-person hearings are the default, unless there is good reason to move to a remote hearing in the particular matter and stage of proceedings.

In the first of this three-part Blog series, we seek to dismantle the rationale behind a full-scale return to in-person Family Law hearings of all types. We think that for every argument in favour, there are significant points against.

The Argument:  Remote hearings increase judicial caseloads

Many supporters of the return to in-person hearings point to the Family judges’ own workload, and their capacity to deal with cases remotely. Some judges apparently complain that they are less efficient in a remote environment.  For instance, while they may have handled up to eight cases a day pre-pandemic, they now have time for only three or four using remote methods like Zoom.

Rebuttal No. 1:  Enhance Judicial Training

As compelling as this may sound at first blush, these concerns are merely anecdotal; there is no real data to support them (unless you count the constant buzz from the judiciary that they are generally overworked, and that the Family Court system is overloaded with cases for them to hear).

This is not to say that judges’ complaints about workloads and backlogs should be glossed over entirely. But haven’t they been raised for – quite literally – decades?  Whether hearings are in-person or remote, the Canadian judicial system has never in recent history been efficient enough to avoid huge backlogs. So the pandemic-prompted switch to remote hearings cannot be the sole cause.

(Spoiler alert:  We think it might actually be the solution.)

But even taking the current concerns at face value, it is important not to conflate the cause with the effect.  It’s no big stretch to speculate that the judges with renewed objections to the workloads might be the ones who are more “traditional”, i.e. less willing to adapt to new technology.  Does this mean the entire legal profession should be forced to return to in-person hearings merely because a handful of decision-makers are struggling with the technology learning curve?

The answer is not to take a step backward, by reverting to old methods and procedures by default. The solution to the problem of high judicial workload, and to individual judge’s fears over the constraints of technology, can be better addressed in other ways including:

  1. improving technology for judges and in the courthouse, and
  2. enhancing the training for Canadian judges.

Plus, a more permanent move towards remote hearings might actually optimize the availability of judges: Many on the bench still have health and safety concerns lingering from the pandemic and recent evidence of a sixth wave of COVID-19 outbreaks. We all have family members and friends who are still getting sick with its variants.

So instead of focusing on the limitations and plight of the judges, let’s turn to those who might stand to benefit from the continued use of remote hearings: the Family litigants themselves. In the next of our three-part Blog series, we will take closer look at the potential advantages from the litigants’ own perspective.

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About the author

Russell Alexander

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