The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is a weekly update from our Family Law Lawyers on how that change is being made:
While life appears to be returning to normalcy after 20 long months, it may surprise you to know that the Ontario court system remains mostly virtual. When the COVID-19 pandemic started, the courts were forced to restructure their practices and procedures to better protect against the spread of the virus. This has not only affected physical appearances in court but also docket timelines and even limitation periods. As a result, there is substantial backlog of cases, jeopardizing fairness and access to justice, prolonged relief, increased expenses, and exacerbated stress and frustration in already high conflict cases. This is especially true in family law, where cases are being prioritized to ensure the safety of children and families.
Despite the many obstacles to holding court hearings, the consensus has been that the show must go on.
COVID-19 forced Ontario to adopt measures to modernize the court system. This includes virtual court hearings, cloud-based document management, and email service and filing. These long overdue modernization measures are big steps forward towards a more accessible justice system.
Since the first lockdown, the Superior Court of Justice has held over 96,000 virtual or hybrid hearings in family law alone,[i] and now with electronic filings and virtual court proceedings, we are producing more timely hearings. Scheduling of hearings is now more punctual and efficient as litigants, lawyers, and staff are no longer waiting for hours to have their matters heard.
The introduction of CaseLines, a cloud-based document storage shared by all parties in a case, has been another positive change. Chief Justice Geoffrey B. Morawetz of the Superior Court of Justice of Ontario (“Chief Justice Morawetz”) highlighted that the platform has been embraced by judges and the bar alike. Many lawyers are also finding CaseLines to be intuitive and accessible system.
Streamlining the courts
Effective September 13th, 2021, Chief Justice Morawetz endorsed the Province-wide Notice to the Profession Regarding Family Law Cases[ii], the purpose of which is to help streamline processes for virtual hearings.
Notable highlights include restrictions on page-limits for materials and the availability of adjournments. It also specifies narrow page limitations on materials filed for conferences and motions. The purpose of this directive is to facilitate a more focused hearing. In the past, burdensome and unnecessary documentation has lead to unfocused hearings that do not facilitate timely resolutions. Now, excluding permissible attachments, conference briefs are limited to 8 pages and settlement conference briefs are limited to 12 pages. Only relevant and necessary excerpts from attachments should be referred to in conference briefs. Specifically, the attachments may no longer include voluminous texts, emails, and social media postings that have previously created an excess of unnecessary materials.
Regarding motions, each party is limited to one primary affidavit that must not exceed 12 pages, with each third party and reply affidavit limited to 5 pages. Exhibits are limited 10 pages of evidence; however, these restrictions are not applicable to long motions, summary judgments, and wrongful removal or retention of a child hearings. In exceptional circumstances, leave may be obtained to file more materials. With an eye towards efficiency, the new Form 25 Order (General), allows litigants to list the specific relief that is being sought with reference to legislative authority.
Due to the routine nature of adjournment requests on short notice, valuable court time and resources were unable to be efficiently and effectively allocated. Now adjournments, even ones on consent, may require the permission of the court. As a result of newly introduced rules, cost orders may also be awarded when matters must be adjourned due to unpreparedness of those involved.
Binding Judicial Dispute Resolution
To further help address the significant backlogs in family cases, the Binding Judicial Dispute Resolution[iii] (“Binding JDR”) has been introduced in some areas of the province.
Binding JDR hearings allow consenting parties to reach a final resolution of their family law dispute more quickly and through less formal processes. At these hearings, the parties request that the same judge that will assist them in reaching a resolution but also decide on matters that remain unresolved. At the conclusion, the judge will provide a final decision on all outstanding issues.
This option is currently available virtually in the Superior Court of Justice in the Simcoe, Muskoka and Cornwall Superior Court of Justice, Family Court Branch and to Superior Courts in the Northwest and Northeast regions. In November, it was extended to Ottawa Superior Court of Justice, Family Court Branch.
While some legal professions have expressed concern that their “theatrical” and fearless advocacy will not translate from the virtual courtroom, many lawyers believe that the virtual world has improved their advocacy due to increased efficiency and access to justice.
Nonetheless, beginning November 8, 2021, the Court of Appeal for Ontario will resume in-person criminal appeals and panel motions with civil appeals and panel motions following one week later. Attendance will be restricted to counsel and self-represented litigants while observers, including clients and the public, will be able to observe virtually. This addresses another access to justice issue that is often unappreciated and underestimated. Expenses related to commuting, taking time off work, additional childcare accommodations, etc can be a significant burden to many low-income and single-parent families. As courts are beginning to reopen, it is likely that we will continue to see the development of a hybrid system, where online hearings will be deployed as appropriate.
With these new measures in place, the courts are beginning to enforce more proactive directions to ensure that dockets are streamlined.
Many predict that this will mean continuing reliance on virtual hearings and teleconferences.
The presence of technology has allowed for over 180,000 virtual and hybrid hearings to be conducted, which unquestionably allowed for more access to justice.[iv] While internet access is a not a universal right, the courts have committed to alleviating this access to technology issue through several means. Self-represented litigants can obtain assistance at the filing office and through the phone by contacting the Justice Services Online’s phone number and attending virtual hearings via telephone still remains a viable option for most people who do not have access to computers or the internet.
Are virtual courts are here to stay? Nobody knows. But Chief Justice Morawetz emphasized that virtual hearings “will be extremely helpful in the shorter term to help address the court’s pandemic backlog, and are here to stay in the longer term for routine appearances in each court system where appropriate.”[v] Other Ontario judges have also expressed their approval of virtual court. The transition and continuation of virtual hearings is a very promising tool in the legal field.
The modernization of courts has been long overdue. This pandemic has forced changes in the court system that many legal professionals had been seeking for years and it seems unlikely that this progress will be reversed. Indeed, it seems more likely that these changes will be embraced and we will see further advancements into the future. We’re even witnessing law firms are setting up “virtual courtrooms” to participate in virtual hearings in a court-like atmosphere. When it comes to justice, the show must, and is, going on and moving forward, at a pace few would ever have expected.
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[i] Amanda Jerome, “Ontario’s chief justices address backlogs, stress need for accessibility as courts modernize.” https://www.thelawyersdaily.ca/articles/29804/ontario-s-chief-justices-address-backlogs-stress-need-for-accessibility-as-courts-modernize
[ii] Chief Justice Morawetz, “Province-wide Notice to the Profession Regarding Family Law Cases.” https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-family-law-cases/#6_Early_Judicial_Intervention_and_Procedural_Direction
[iii] Chief Justice Morawetz, “Practice Advisory Concerning the Superior Court of Justice’s Binding Judicial Dispute Resolution Pilot Projects” https://www.ontariocourts.ca/scj/practice/binding-judicial-dispute-resolution-pilot/
[iv] Supra note 1.