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What Family Lawyers Can Still Do (And What We Can Do That We Couldn’t Do Before)

3 minute read

On May 6, 2020, Ontario Superior Court Chief Justice Morawetz released a Notice advising lawyers and litigants that the resumption of in-person court hearings has been pushed back to July 6, 2020 at the earliest.

On May 6, 2020, too, I participated in a telephone conference with a judge in Windsor and another lawyer in Stratford, while sitting in my home in London. It was a productive hearing: the judge had reviewed the affidavits that each side had submitted (electronically); she heard the submissions from the lawyers; and she made a number of orders which were then emailed out to the lawyers within an hour.

The message from the Chief Justice tells us that it will still be some time before we are able to resume “normal” court operations as we have come to know them. My phone call reminds me that there will almost certainly be a new “normal”, and that it has already begun.

Using a telephone is not revolutionary. Neither, for that matter, is videoconferencing, which my colleagues and I now practice with some regularity. My clients have been using Skype to communicate with their children since I began practising law in 2015. I have drafted countless clauses in agreements and draft orders which outline the rights of parents and children to speak to one another by Skype. The step that had never really been taken until now was for the family bench and bar to apply the technology which family law litigants have been practising for years to the practice of family law. The COVID-19 crisis has changed that, and judges and lawyers are changing too. And it’s not just phone calls and videoconferences.

We are commissioning documents electronically. While commissioning is governed by the Commissioners for Taking Affidavits Act, and not the Law Society of Ontario, the Law Society has provided direction to Ontario lawyers that, until further notice, “the Law Society will interpret the requirement in the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client. Instead, alternative means of commissioning such as commissioning via video conference will be permitted.” In these conditions, “permitted” means “practiced”.

We are signing separation agreements using electronic signature software which enables us to sign, even as witnesses to an agreement. This involves coordinating the signature software and videoconferencing in a way which permits each party to sign, followed by their lawyer, who has witnessed them doing so, without ever requiring the lawyer and the client to meet face to face.

We are engaging in case conferences and arguing urgent motions. The courts are not currently permitting in-person hearings, but they are not closed for business. While only urgent motions are being argued, the courts are offering parties telephone case conferences, where judges can opine on issues and make orders on the consent of the parties. Many concerns are reaching judges, even though parties and lawyers are not stepping into the courthouse.

We are participating in mediations and arbitrations with experienced mediators and arbitrators who are offering their services via videoconference.

We are engaging in substantive settlement discussions by email, phone, fax and video.

In short, family law has not ground to a halt as so many industries have. Family lawyers are doing many of the same things we have always done, and some things we haven’t done before. We are seeing glimpses of a new normal which is focused on the delivery of legal services, rather than on the location where that service has traditionally been dispensed.

I cannot tell you with certainty when the court house will be doing in-person hearings. I cannot tell you when my colleagues and I will be available to meet our clients in the office. I can tell you that we – family law lawyers, judges and staff – are open for business and that there are many things that we can still do, in many cases better than ever.

 

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Jordan McKie

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