This blog has also been published in Law360.

A recent piece by Steve Benmor highlights a growing inconsistency within Ontario’s family court system—one that deserves serious attention.

Courts have recognized, both judicially and practically, that virtual proceedings improve access to justice. Yet, at the same time, institutional policy is shifting back toward mandatory in-person attendance for routine matters.

That contradiction is not procedural. It is fundamental.

A System That Found a Better Way

In Worsoff v. MTCC 1168, Justice Myers described virtual proceedings as one of the most meaningful advancements in access to justice since Hryniak v. Mauldin.

The reasoning was grounded in practical reality:

• Litigants do not need to take a full day off work
• Travel and parking costs are eliminated
• Lawyers avoid billing for non-productive time
• Scheduling becomes more efficient

These are not marginal improvements. They are the difference between participation and exclusion.

The Quiet Reversal

Despite this clear direction, Ontario family courts have moved to require in-person attendance for short motions—the very category of hearings where virtual access is most effective.

These are:

• Short, procedural appearances
• Often under one hour
• Based primarily on written materials

There is no credible basis to suggest these matters require physical attendance to be fair.

The shift reflects a return to habit, not a progression of principle.

Why In-Person Requirements Create Barriers

Cost Becomes a Gatekeeper

Reintroducing in-person attendance brings back:

• Travel time
• Waiting time
• Parking costs
• Lost income

For many litigants, these are not inconveniences—they are barriers.

Participation Declines

Virtual hearings enabled participation for those who:

• Cannot easily leave work
• Have childcare responsibilities
• Live far from court

Removing that flexibility reduces meaningful access.

System Efficiency Reverses

Virtual systems allow:

• Multiple appearances in a single day
• Reduced downtime for counsel
• Greater scheduling flexibility

In-person requirements undo these gains.

Geography Matters Again

Mandatory attendance disproportionately affects:

• Rural litigants
• Those without reliable transportation

This reintroduces inequality into a system that had begun to reduce it.

A Threadbare Policy Shift

What is most concerning is not just the result, but the lack of visible justification.

There is no clear evidence of:

• Empirical analysis
• Cost-benefit evaluation
• Broad stakeholder consultation

Without that, the decision appears threadbare—a reversal unsupported by the very principles courts have repeatedly endorsed.

Judicial Workload Pressures — Real, But Misdirected

It must be acknowledged that judges are operating under significant strain.

Courts across Ontario routinely face:

• Heavy caseloads
• Limited judicial resources
• Delays in appointing new judges
• Backlogs exacerbated by retirements and growing demand

These pressures are real. Judges are, understandably, concerned about:

• Managing volume
• Maintaining control of proceedings
• Ensuring efficient use of limited court time

However, these concerns do not support a return to in-person hearings. They point in the opposite direction.

Requiring physical attendance:

• Increases scheduling rigidity
• Reduces the number of matters that can be heard in a day
• Adds logistical friction for all participants

In contrast, virtual hearings:

• Allow more flexible scheduling blocks
• Reduce downtime between matters
• Enable courts to hear more cases in less time

If the system is strained, the solution is not to adopt a less efficient model.

It is to lean into tools that improve throughput.

Judicial workload is not an argument against modernization. It is one of the strongest arguments for it.

The Case for In-Person Hearings — And Why It Falls Short

To be fair, several arguments are commonly raised in favour of in-person proceedings.

Settlement Happens More Easily in Person

It is often suggested that the courtroom environment promotes resolution.

Response: Settlement is driven by preparation and risk—not physical proximity.

Solution:

• Structured virtual settlement conferences
• Judicial involvement via video
• Use of breakout rooms for negotiation

Decorum Is Stronger in Court

There is a belief that participants behave more appropriately in person.

Response: Decorum is enforced, not inherent.

Solution:

• Clear virtual courtroom rules
• Mandatory camera use
• Active judicial enforcement

Virtual Hearings Lead to Disorder

Concerns include interruptions and lack of seriousness.

Response: This is a case management issue, not a format issue.

Solution:

• Strict speaking protocols
• Muting controls
• Defined turn-taking procedures

Judges and Counsel Struggle with Technology

There is discomfort with adopting new tools.

Response: This is not a justification for regression.

Solution:

• Training programs
• Investment in infrastructure
• Appointment of technologically competent judges

Technology Is Not the Problem

Virtual hearings are not perfect. But perfection is not the standard.

The question is whether they:

• Improve access
• Reduce cost
• Maintain fairness

They do.

Their limitations are manageable. The barriers created by in-person requirements are not.

The Real Question: Who Does the System Serve?

This ultimately comes down to priorities.

Is the system designed for:

• The litigant, seeking practical and affordable access
• Or the institution, favouring familiar processes

Virtual hearings prioritize accessibility.

Mandatory in-person attendance prioritizes tradition.

That is not a neutral choice.

A Better Path Forward

A balanced model is clear:

• Trials and credibility-driven hearings → in person
• Short motions and procedural matters → virtual by default
• Judicial discretion → applied where necessary

This aligns with both logic and existing jurisprudence.

Final Thoughts

The move away from virtual short motions is not simply procedural. It is a step backward from the modernization envisioned in Hryniak v. Mauldin and reinforced in decisions like Worsoff.

As Steve Benmor notes, access to justice is measured in real terms—time, cost, and the ability to participate.

When those barriers are reintroduced without justification, the system is not evolving.

It is regressing.