Access to justice remains an issue as some Ontario family courts return to in-person hearings

Lawyers say access to justice remains a big issue in Ontario’s family court system after two years of delays and closures in response to the COVID-19 pandemic.

When the virus arrived in March 2020, it wreaked havoc on the justice system, closing courthouses, canceling trials and creating a backlog of unsolved cases.

However, the pandemic has also forced Ontario’s paper-based justice system into the 21st century overnight, introducing virtual hearings and an online portal, where lawyers and clients can get information, schedule appearances and file documents.

From April 4, the Ontario Court of Justice has said it will resume most in-person family law proceedings, but whether you see the judge in the courthouse or on a screen will still largely depend on the vast and complex inner workings of the family justice system.

Access to justice now linked to the digital divide

“In London, I don’t think we’ll be attending in person for a while,” said Stephanie Ouellette, a London family lawyer who handles child protection cases through Legal Aid Ontario.

While virtual hearings may be more efficient in some ways, access to justice issues in the “new normal” are directly linked to income and the digital divide, experts say. (Jane Robertson/CBC)

She said in London there were 65 family cases on the trial list in March, but fewer than five were actually heard, pushing at least 60 cases into April, on top of cases already scheduled for the month.

“We are really, really far behind unfortunately.”

While virtual hearings may be more efficient in some ways, access to justice issues in “the new normal” are directly tied to income and the digital divide, Ouellette said.

“Some of my clients, who are involved in child protection cases, don’t even have cellphones, let alone the data to use them.”

“We’ve seen people miss court appearances simply because they don’t have the devices to log into their own court proceedings.

“Local courts are trying to resolve this issue and adapt as best we can, but this is a larger issue with issues of justice and access to stable internet.”

Marginalized people may face internet-related issues

Access to justice, much like the digital divide itself, often affects people on the margins of society, and the pandemic appears to have only made it worse, according to Christina Ninham, a lawyer for the family of Oneida of the Thames which represents a number of Aboriginal Clientele.

Before the pandemic, transportation to the courthouse in London, Ont., was a big deal for some Indigenous peoples, including those from the Oneida Nation of the Thames, pictured here. Today, access to technology, such as broadband, poses problems. (Colin Butler/CBC News)

“We don’t have high-speed internet like they have in town,” said Christina Ninham, a family lawyer with Oneida Nation of the Thames, who represents a number of Aboriginal clients.

“In reality, not everyone has internet on the reserve. When we have internet, we try not to give up on our court appeals, which I have done on several occasions.

“I maintain two different phones with two different carriers just so I can get the internet.”

Others, however, may not have a phone or a computer. Being dependent on a public computer terminal in a library or community center can lead to complications, especially when dealing with sensitive legal or personal matters.

“For a reservation, they won’t prioritize high-speed or broadband internet, especially when they won’t even prioritize the human right to clean water.”

Ninham said that despite all the challenges, if the courts ever returned to the way they operated before the pandemic, using exclusively in-person appearances, it would make things worse for Indigenous peoples rather than better.

She said Indigenous peoples, who are by far the most overrepresented people in Canada’s justice system, can now, through virtual technology, hire an Indigenous lawyer like her even if their local bar doesn’t have one.

“I think in the northern areas they’re going to stay virtual for those reasons,” she said.

Virtual court is cheaper, more efficient

There are other barriers to accessing virtual justice, with older people less likely to adapt to new technologies than their younger counterparts, and domestic violence is easier to hide, according to Russell Alexander, a Toronto divorce lawyer with seven offices in the Greater Toronto Area.

Although online court has its drawbacks, lawyers say it is more efficient than doing business in person and reduces billable hours while allowing lawyers to serve more clients from further afield. (Jenny Kane/Associated Press)

“It’s harder to filter [for domestic violence] when you are at home. Someone can be intimidated or intimidated, and when you go to the courthouse, the judge can oversee the proceedings and keep an eye on things,” Alexander said.

“People fall through the cracks.”

Still, Alexander argues that virtual court has improved access for many of his clients, who are looking to end marriages or negotiate spousal support.

The ministry is consulting with our health and safety advisors from the Office of the Chief Medical Officer of Health and the Ministry of Labour, Training and Skills Development to determine appropriate preventative measures for courthouses in the future.– Brian Gray, Ontario Ministry of the Attorney General

The most positive thing he has seen in terms of virtual hearings is the fact that it has reduced his billable hours.

What Alexander calls “Zoom divorce” is much more efficient for lawyers and clients than appearing in court in person. He said an online appearance can reduce a five- or six-hour day to just one, which can save clients thousands of dollars in attorney fees and give them the flexibility to take on more clients.

“You can take calls the same day, see people the same day, access to justice is improved with technology.”

Regarding the future of a post-pandemic justice system, Ontario’s Ministry of the Attorney General, which is responsible for provincial justice, told CBC News it is still consulting with health experts and was assessing the best options for the justice system in the future.

“The ministry is consulting with our health and safety advisers at the office of the Chief Medical Officer of Health and the Ministry of Labour, Training and Skills Development, to determine appropriate preventative measures for courthouses in the future” , said an email from spokesperson Brian Gray. .

Whether a person appears in person or on screen will continue to depend on where they live, their circumstances and what is best to ensure justice, Gray said, noting that each court can determine its own particular protocols.