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    May 9th, 2022

     

    Attribution 2.0 Generic (CC BY 2.0)

    ♫ Slip sliding away, slip sliding away
    You know the nearer your destination, the more you’re slip sliding away… ♫

    Lyrics, Music and Recorded by Paul Simon.

    Something extraordinary is taking place in Ontario.

    Family law lawyer Russell Alexander of Russell Alexander Collaborative Family Law Lawyers of Toronto and six other locations in Ontario, Canada has started an online petition on Change.org entitled: “Petition to Amend the Requirement For In Person Court Attendances.”

    What are they petitioning for, you ask?  Good question:

    “We, the undersigned lawyers and paralegals who practise family law, hereby petition to the Attorney General of Ontario and to the Regional Senior Justices, that there shall be immediately put in place an overriding direction that all court attendances shall be presumptively virtual unless the parties and their counsel agree otherwise or if the court for good reason orders that a particular attendance shall be in person or hybrid (ie. some may attend virtually and some may attend in person).”

    They state the issue as follows:

    “The Issue

    1. The Chief Justice and Regional Senior Justices at both Ontario court levels (Ontario Court of Justice and Ontario Superior Court of Justice) have issued Notices to the Profession that stipulate revised practices and standards to determine whether various types of court attendances shall be in person or virtual.

    2. While the directions are not always consistent, there is a disturbing trend to emphasize the necessity for in person attendances as opposed to virtual attendances.”

    Their petition has garnered 987 signatures as of the date of writing.

    It seems that many people agree with Russell that the move to virtual hearings has has a number of benefits and increased access to justice.  A selection of the reasons for signing the petition highlights many of them:

    • Diego Cariaga writes: “Virtual hearings will continue to spare lawyers and clients of unnecessary stress and costs since for the vast majority of litigation matters it is not necessary or helpful to appear in-person (as COVID-19 has demonstrated)”
    • Catherine Haber: “I am a practicing family lawyer with many years of experience.Virtual hearings are far more cost effficient for the public.There is little advantage to more costly in person hearings.”
    • Tom Dart: “Virtual appearances lower costs to the client where they are represented. We need to look at the attendances from the client perspective. Where clients can’t access the internet, in person may be the only method. In person should be reserved for such cases. I agree with the other reasons submitted as well.”
    • Rachelle Laforge: “Prior to the pandemic, the court system was operating with technology and resources from the 90s at best. The court system has not been at the forefront of innovation but was forced into it during the pandemic.One of the positive outcomes of the pandemic has been that the court system was catapulted into present times as far as technology goes.Innovation is about solving real problems. Virtual court hearings provide:- More access to justice (anyone with a phone can have access…no need to drive, fly, cab it to the court house and pay for parking)
      – Costs have been significantly lowered for clients (no need to pay lawyers to drive to court houses and wait around on running lists)
      – Ease of presentation of documents – which sometimes need to be voluminous in cases of coercive control (I had a case where I needed the judge to consider 117 messages from a dangerous self-rep where he wrote emails with Bold lettering, coloured text and coloured highlights)…
      – Zoom hearings provide for opportunities to have break out rooms where parties and lawyers can quickly jump in and out of…cant do that quickly in person;
      – French speaking parties can get counsel from anywhere in the province to attend without incurring prohibitive costs;
      Clients in northern Ontario and other small communities are limited for representation due to conflicts…virtual proceedings provides for clients to be able to go outside their community for representation without the prohibitive costs of travel.”

    Russell Alexander sets out the case for keeping virtual hearings as well:

    The Case for Dropping the Presumption

    This risk is remedied by the use of remote/virtual case conferences, because it actually improves access to justice and the expeditious resolution of disputes in several ways.

    First, let’s revisit the odds of settlement: If only 10% of cases resolve at the first case conference, it may be a fair inference that these same 10% would also resolve their matters via a Zoom case conference. This renders the in-person experience to be arguably unnecessary.

    Second, the costs savings of Zoom conferences are significant. No travel, no parking, no traffic. Court security line-ups, confrontations, and courthouse conflicts are all eliminated. There is no more sitting around for several hours or the entire day. Legal expenses each of the lawyers representing the parties are also significantly reduced.

    Third, access to justice can only continue to improve. Clients can choose their preferred lawyer from anywhere in the province. Lawyers will be more readily available for the currently under-served northern and rural communities. Clients with legal aid certificates will be more likely to secure a lawyer.

    Fourth, technology and the internet heighten accessibly to the justice system, as compared to having to travel several hours to the courthouse and back. Most people can access a case conference through Zoom – even if its with the assistance of a friend, family, or employer. Justice “hubs” can be set up at libraries or the SCJ’s family law information centres, or in empty SCJ courtrooms, for parties who cannot access the required technology. There are many other innovative ideas to address the issues of technology and connectivity.

    Fifth, the court can implement procedures to screen and assist victims of domestic violence who are involved in family court matters. This will also help to regulate and prevent litigants who perpetrate domestic violence from using the litigation process to exact further harm, harassment, and psychological damage on their ex-partners.

    Sixth, the toll on peoples’ mental health of going to court in-person, confronting their ex-partner, dealing with conflict and potential health risks lingering from the pandemic can be remedied by via Zoom case conferences. Parties can conduct their hearing from the safety and privacy of their own homes.

    Seventh, the rise of self-represented litigants is a problem that plagues the Family Court system. Remote hearings by Zoom have stymied this, somewhat. It has helped those who would otherwise have to resort to self-representation, by freeing up more Family lawyers. Those lawyers could keep practicing and serving clients remotely, despite health concerns, daycare, and other needs. For example, clients in rural and northern communities were retaining lawyers with legal aid certificates from the GTA and other larger centres.

    If in-person hearings return to the old norm, many Family lawyers will simply no longer practice family law. That is the benefit of a law degree: We can choose to practice in any area of law that does not require in-person attendances. (And the list is endless: Wills, estates, real estate, corporate, tax, business and so on). An exodus of Family lawyers will result in fewer lawyers accepting legal aid certificates, and increased time and expense associated with in-person hearings.

    All of this will result in alarming spikes in the number of self-represented litigants.

    Plus, self-represented litigants often require greater time and resources to adjudicate their matters. They may be unable to focus on the legal issues. They may not understand the law, fail to comply with the Family Law Rules, and be unaware that there are rules of evidence and court-issued practice directions that they need to follow. They can sometimes be vexatious. All of this often results in mental and emotional strain on the judiciary, and can lead to burnout, inertia and the justice system’s slide to entropy.

    To emphasize the point with the court, Russell and his crew are holding a virtual press conference May 10, 2022:

    Panel of Ontario Family Lawyers to Hold Virtual Press Conference Calling for Courts to Continue Remote Hearings
    Lawyers say so-called ‘Zoom divorces’ save clients’ time and money and should continue

    Their press release states as follows:

    WHAT:

    A panel of veteran Ontario family lawyers will host a virtual press conference to discuss the recent Notice to the Profession from the Ontario Superior Court of Justice ordering the return to in-person court attendance. The thrust of these pronouncements is that many court hearings will revert to in-person from virtual, which will mean less access to justice and higher legal costs for many clients.

    The panel recently started a petition that has received over 900 family lawyer signatures thus far in attempt to reverse the decision.

    The media is invited to attend the press conference to learn more about what this means for family lawyers in Ontario and those seeking divorce. There will be an opportunity to ask questions.

    Registration is required to attend via Zoom by completing the sign-up form below.

    WHERE:

    On Zoom: https://us02web.zoom.us/webinar/register/WN_zw6hCGIlT36zQ-7vGpAPBQ

    WHEN:

    Tuesday, May 10, 10 a.m. ET

    WHO:

    The Ad Hoc Committee for the Preservation of Access to Justice consists of:

    • Russell Alexander-Founder and Senior Partner at Russell Alexander Collaborative Family Lawyers, practicing for 24 years (Called to the Ontario Bar in 1998)
    • Gene C. Colman-Founder of Gene C. Colman Family Law Centre, practicing for 43 years (Called to the Ontario Bar in 1979)
    • Natalie Derbyshire-Partner at Stanchieri Family Law Professional Corporation, practicing for 16 years (Called to the Ontario Bar in 2006)
    • Brian Galbraith-Owner and Founder of Galbraith Family Law Professional Corporation, practicing for 32 years (since 1990)
    • LisaGelman-Founder of Gelmanand Associates, practicing for 27 years (Called to the Ontario Bar in 1995)
      Gary Joseph-Managing Partner and Chair at MacDonald & Partners LLP, practicing for 44 years (Called to the Ontario Bar in 1978)
    • Karen Kotansky-Managing Partner at Gelman and Associates, practicing for 28 years (Called to the Ontario Bar in 1994)
    • Nafisa Nazarali-Managing Associate Lawyer at Russell Alexander Collaborative Family Lawyers, practicing for 12 years (Called to the Ontario Bar in 2010)
    • Ram Shankar-Founder of Shankar Law Office, practicing for 28 years (Called to the Bar in India in 1994. Called to the Ontario Bar in 2014)

    I will be watching the press conference with interest this coming Tuesday. The move to virtual court hearings, in my opinion, was a positive one and should be continued for all the reasons noted above and more. It remains to be seen if this novel approach to achieving change in the profession will ultimately be successful. But it is certainly aimed at keeping the changes that have occurred in the courts from slip-sliding away…

    © 2022 David J. Bilinsky

    (Concurrently published both on slaw.ca and this blog.)

     

    This entry was posted on Monday, May 9th, 2022 at 7:00 am and is filed under Change Management, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
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