Kirschbaum: COVID has modernized parts of the justice system – let’s not go back

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Ontario courts have reverted to in-person appearances and paper documents, taking away flexibility and hindering access

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In April, lawyers in Eastern Ontario were informed that many types of civil and family law court cases, which had taken place on Zoom throughout the pandemic, would return to the Superior Court for in-person hearings.

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In Ottawa, these guidelines came into effect earlier this month. This decision was made without consulting the public or members of the bar and betrays, to some extent, Supreme Court of Canada Chief Justice Richard Wagner’s public statement that the justice system cannot go back to 2019. The current system is failing to maximize gains from the pandemic, and in Ottawa, is threatening to tax a courthouse that sometimes lacks physical courtrooms.

Since COVID-19 ended regular courthouse operations across the province in 2020, there have been many technological changes in the family court system. The filing, which was previously done in paper form, physically at the counter of the courthouse has moved online. At first, this was done by email to various courthouse email addresses, according to the document.

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Two technologies were introduced in the summer of 2020, Caselines and the JSO Portal thereafter. The JSO portal is the online filing repository where documents are accepted or rejected by the court. Caselines is an additional database where accepted documents must be uploaded before hearings, so that they can be consulted in a centralized location by the parties and the judge. Documents that are filed outside of the standard deadlines for various reasons (including emergencies or court orders) should always be submitted to designated registries by email and uploaded.

Although access to e-filing offers environmental benefits and a degree of technological efficiency, the e-filing system is far from simple and continued investment will be required to address the limitations of the current system.

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Additionally, throughout the pandemic, the judiciary has demonstrated its ability to deliver justice via Zoom video conferencing software, which was previously considered too risky for security reasons and likely some financial conservatism on the part of policy makers. .

This meant parties could attend hearings from home or work. They didn’t have to take so much time off from work to come to the courthouse in person. Lawyers, who showed up from the comfort of their office, could use the wait time more efficiently, thereby lowering the client’s bill. Third-party service providers, such as interpreters, could work remotely, reducing travel costs and wasted time.

Were there occasional Zoom chats and a poorly dressed person? Absolutely. But in the balance, Zoom hearings worked, especially in cases where there was an attorney representing each side. Court decisions were rendered by e-mail and life went on.

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In accordance with the new practice guidance, even family court appearances, such as case conferences, which tend to be primarily procedural in content, require in-person attendance. This means that the parties must appear in person for a hearing which can last 30 minutes, and where the subject discussed can be limited to other filing deadlines. This presence will be required of the parties regardless of the difficulties they may encounter in getting to the courthouse, whether caused by the distance between the courthouse and their residence or other obstacles.

Their lawyers, after filing all documents electronically, either have to come to the courtroom with hard copies of the relevant documents, as was the practice for many in 2019, or they have to use laptops from office and rely on the internet access point or patchy Wifi system in the courthouse.

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The lack of access to case lines on the computers at the lawyers’ table makes it difficult to access relevant documents. Requests for virtual hearings are granted only in the most exceptional cases (such as a client who resides in another province or in cases of seriously compromised health). This means that many parties who reside in smaller jurisdictions like Cornwall or Perth will have to start paying their Ottawa lawyers again to leave the city to go to court.

The current practice direction takes us too far back in time. The justice system must move forward, which means greater openness to virtual hearings, especially for trial dates, and greater freedom not to attend in person for a wider variety of reasons. Throughout the pandemic, Ontarians have been able to hire a lawyer across the province due to the flexibility offered by remote hearings. Wait time billing has decreased. Access to justice has improved. It can’t stop.

Ottawa Lawyer Alexandra Kirschbaum has practiced exclusively in family law since 2013. This article was prepared with the assistance of Kiran Virk.

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