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As we consider our world today, early May 2020, we know that Covid 19 has impacted almost every aspect of our society; almost violently so. Certainly our legal system in Canada has not gone unscathed. In Ontario, on March 17, 2020, the Superior Court of Justice suspended “in Court” operations. Since that time, we have received updates – although few in number – to let us know what types of civil, criminal and family matters may be dealt with remotely; those matters differ, depending which part of Ontario your case is in.
Judges want to be working - however their ability to do so has been substantially curtailed by this Pandemic. Currently, Judges are working from home and have no access to the paper court files. At this time, matters that may be heard in Family Courts in Ontario, include matters that have been deemed “urgent” and matters on consent. When a matter has been deemed “urgent”, the Judge will only see the documents that have been electronically filed for that hearing; not the background information and documents, which are contained in the paper court file. Lawyers will attend the urgent hearings by telephone conference, or more recently, by video-conferencing programs, such as Zoom. In many jurisdictions, pre-Pandemic, family matters would be Case Managed, meaning the Judge would be familiar with the background of the family prior to hearing the matter. Today, the Judges don’t have that ability, as they don’t have the history before them; therefore their “Pandemic decisions” may differ, as a result. But most family matters will not satisfy the test of “urgency” in any event. There is no scheduled time for regular “in court” matters to be heard. We know there will not be any jury trials until at least September. Both the Ontario Court of Justice and the Superior Court of Justice have just updated their notices, advising that the earliest regular court operations could begin, is July 6, 2020; of course this may extend to a later date, as it already has.
What we do know, is that once regular court operations do resume, the backlog will be extreme. Our Chief Justice in Ontario has indicated that we will not go back to the old way of doing things, now that we have moved in the direction of electronic filings and electronic hearings. But is that realistic? It took a Pandemic to take action; likely due to the costs involved to make changes. Revamping the workings of our legal system is not a platform politicians get elected on – it is not a change society values and wishes to pay for, until we need it. There is so much work to be done, and money needed, to make real, impactful, changes to the way in which litigation is processed. The Attorney General announced $1.3 million in funding for technology, to assist courts to transition to remote operations. I suspect that is a very small portion of the budget needed. Going forward, courthouses need to be updated to allow for telephone and video hearings, Judges need the ability to access court files electronically, lawyers and self-represented litigants must have the ability to file documents electronically, without having to travel to the Courthouse to do so, all the technology must work together, and people need to be trained; so much!
To date, the legal system has put a band-aid on its workings, at least for family-law litigants, which enables it to put out fires. But the system was overwhelmed to begin with, and I have real concerns about society’s expectations when the courts do open up for business again. So I won’t end there, without mentioning the alternative to avoid all of the above, at least for many family and civil matters - alternative dispute resolution. Although I understand some matters need to go to court, many do not. Some civil matters could be avoided, if only someone could hear “I’m sorry”. That can be said in a mediation, and can be so healing.
With family litigation, I believe it so often begins as part of the “fight or flight” response after a separation. It can feel too hard to have tough discussions. Sometimes, it can even feel too hard to make your own decisions; it is not uncommon for people to want a Judge to tell them what to do or what is right. But what happens when the litigation is over? The lawyers and Judges should not be a long-term solution, meaning particularly if you have children, you are going to need to communicate in some fashion. It’s my belief that self-determination, real communication, being thoughtful about your life and children, considering others in your life, learning and growing, are powerful and meaningful and allow for people to move forward with their lives more positively. Mediation allows for all of that, as does divorce coaching. People can have tough conversations, with the help of a mediator, without the fear or pressure of needing to prove oneself to a Judge and without the fear of a “win or lose” scenario. And mediators already have the technology.