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In-Person vs. Virtual? New Practice Directions Leave “Wiggle Room” for Family Courts

Written by Russell Alexander / (905) 655-6335

Ontario Family Courts are going back to in-person hearings – in many cases.  

This is according to the May 30, 2023 Memorandum from the Chief Justice of the Ontario Superior Court of Justice, addressed to the province’s lawyers and judges.

The Chief Justice advises that effective June 15, 2023, new and consolidated Practice Directions will come into force, and will help transform Family Court proceedings into something with more flexibility than we saw pre-pandemic. 

The New Directives

The 53-page Family Court Practice Directions cover a lot of topics of interest to litigants, their lawyers, and the judges themselves.  But one of the key directives involves the rules around when a hearing can/must be held in-person, and when it can be held virtually.  

The Practice Directions ultimately leave that decision to the court, but it set “presumptive guidelines” that stipulate the default type of attendance for each kind of proceeding.   As just a few examples:

  • All trials are held in person unless all parties consent to a virtual trial and the court approves.
  • All urgent motions will be heard by videoconference, unless the court specifies a different method at the time of scheduling.  
  • Conversely, all settlement conferences, and trial management conferences with a settlement focus, are held in-person unless the court approves a different method in advance.

However, a Family Court can deviate from these rulings after taking into account what are referred to as “over-arching principles” in how the presumptive guidelines should be applied.  They take into account an assortment of facts, such as: 

  • The issues in the proceeding; 
  • The expected length of the hearing; 
  • The evidentiary record; 
  • The status of the parties (e.g. self-represented or not); and 
  • The participants’ access to technology. 

The Practice Directions also expressly recognize the benefits of both in-person and remote hearings, and allow for a hybrid option in some scenarios. (There are some stated exceptions, such as Contempt of Court hearings which must always occur in person).

Interestingly, the Practice Directions also allow for regional variations to these general rules dictating how specified proceedings are to be heard. As the Practice Direction explains:

The following guidelines set out the Court’s expectations for the default method of appearance for all family events that will be applied across the province.  However, the Court also recognizes that some Regions, in particular the Northwest, Northeast and those with circuiting judges, will require greater flexibility in hearing more cases virtually.

Our Take 

As far as a post-pandemic model goes, we think these latest pronouncements take a more moderate approach – at least as compared to the previous Superior Court edicts that favoured in-person hearings. 

But in our view, they are still a missed opportunity to modernize the system, and to improve access to justice.

We think that all Family Court hearings should presumptively be held remotely.  This is the best, most efficient, and most cost-effective route for dispensing Family justice in the province – and the past three years has proven that it can work.  (And of course litigants who prefer to proceed in-person should be given every chance to do so). 

What are your thoughts on this latest post-pandemic directive from the Courts? 

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About the author

Russell Alexander

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