A group of family lawyers in Ontario say they’ve gathered more than 1,000 signatures on a petition to keep virtual hearings the standard in Ontario courts, but local lawyers say there are some things you don’t get virtually.
During a press conference on May 10, the group gathered to discuss why they believed virtual court was better for attorneys, their clients and the court system as a whole.
“This is an access to justice issue,” said Brian Galbraith, owner and founder of Galbraith Family Law. “This is not about conveniencing lawyers, or the judiciary… It’s about the client and their experience.”
Galbraith, along with lawyers Russell Alexander, Gene C. Coleman, Nafisa Nazarali, and Ram Shankar, say the switch to virtual court during the pandemic saved clients money, helped avoid contentious face-to-face meetings with ex-partners and allowed courts to be more efficient.
In terms of saving clients money, Galbraith said that under the virtual court system, lawyers don’t have to bill for travel time or time spent waiting around courthouses for hearings to start. Instead, they can work on other matters while waiting at their computers.
Shankar, who practices family law in more rural parts of Ontario, said the virtual court system is also a boon to people living in those areas, who may not have easy access to public transportation that can get them to hearings. Further, the longer distances lawyers need to travel means more hours billed to clients.
“It is unfair to ask lawyers and litigants to appear in person, when these matters may just as well be completed successfully, remotely,” Shankar said. “How do we know this? We know this because in the last few years we’ve had hundreds of conferences from locations in rural communities completed successfully.”
There’s also the fact that virtual court means that ex-spouses don’t have to see each other face-to-face, but that might not always be a good thing.
David Woolcott is a lawyer with Woolcott Krashinsky LLP in Guelph. He said that digital innovations during the pandemic have been a benefit to the Ontario court system, but not all matters can or should be dealt with virtually.
One type of hearing Woolcott points to specifically are settlement motions. “Virtual hearings are convenient, but sometimes people become dismissive of them because they can be so easily put together and it’s easy to walk away from them,” he said.
“And in terms of trial, I think there’s something to be able to see a person’s demeanor… tone of voice… watching their interactions in court.”
Woolcott went on to say that virtual proceedings may also put added pressures on people with less resources. For instance, a person might not have experience with the technology, might feel uncomfortable on camera or might not have a quiet room to participate from.
Still, he said it makes sense for virtual hearings to remain an option. “We have people from Mount Forest. Should they be required to drive to Guelph for a hearing that’s going to take a half-hour?”
According to the Superior Court of Justice’s guidelines on determining the mode for family law proceedings, virtual hearings are currently the default for first appearances, early or urgent case conferences and triage courts, urgent motions and trial scheduling, among others.
For trials, long motions, case, settlement, and trial management conferences, in-person appearances are the default.
“While presumptions for each event set out the default position of the Court, the final determination of how an event will proceed will remain subject to the discretion of the Court,” note the guidelines.
In a response to questions, the Superior Court said that these guidelines “reflect a balance of all justice participants’ needs which requires the availability of both in-person and virtual attendances.
“Each of the guidelines are accompanied by over-arching principles which inform their application, and discretion is built into them so the final determination of how an event will proceed remains subject to the discretion of the Court.”
Michael Purves-Smith is a family lawyer in Guelph who said he’s familiar with the petition, but doesn’t fully support the move to make virtual hearings the standard. Like Woolcott, he shares the same concerns regarding settlement hearings.
Likewise, he said that courts need to maintain flexibility when deciding if a proceeding is in person or not.
“From what I can see, they’re (judges) doing a very good job of balancing the need to utilize new technology where possible,” he said.
“It’s fair to say that I think the court administration has done, by and large, a very good job managing the pandemic and adapting to the new technologies that we’re using.”