Virtual Court: Pros and Cons

The COVID-19 pandemic is finally starting to subside. Things are opening up again. The world is getting back to normal.  

The Ontario Family Courts are among those institutions that are now reopened. In fact, there has been a recent announcement aimed at judges and the public, advising that certain types of hearing are to be held in-person “presumptively” – meaning unless there is a good reason to do otherwise.

We won’t be saying goodbye to virtual court hearings (held remotely by Zoom or other technology), though. To the contrary, it seems they are here to stay. Going forward, there will likely be a blend of in-person hearings, coupled with virtual court in some cases. It will be a “hybrid” model.

We already have decades of experience with a justice system that relies on in-person hearings alone. We know its benefits, and we know its flaws too – such as large backlogs of cases scheduled for hearing. So let’s take a look at the flip-side, by examining the pros and cons of virtual hearings from the vantage point of divorcing couples and parents who are in dispute over matters relating to their children:

Virtual Court: Cons

The use of virtual hearings in Family Court matters does have some shortcomings: 

• Reliance on technology. Since virtual hearings take place on computers connected to each other through the internet, this may freeze out a very small number of (largely older) litigants, or those who are financially disadvantaged. They may not have ready access to technology, or may not be comfortable with how to use it.
• No “day in court.” Although the litigants do get a hearing through teleconference, they do not have a chance to be physically in court, with all the formality and decorum that the courtroom experience provides. For some, this may be an important part of the process, and may reinforce their impression that they are getting a just and fair result in their case.
• No on-site resources. Many of the buildings that house the Ontario Family Courts also provide mediation services and duty counsel right on the premises. Remote hearings mean people do not have the same immediate opportunity to take advantage of these kinds of resources.

Virtual Court: Pros

Having addressed the cons, virtual hearings do have some clear pluses:

• Costs and time saved. In the traditional in-person court model, litigants represented by counsel would normally have to pay for their lawyers’ travel time, plus any time spent waiting in crowded courthouses for the hearing to begin. With virtual hearings, this is time and money that is saved. There is no physical travel needed.
• Access to justice is improved. People involved may not be located in urban centres near the courthouses. They may even be in very remote locations throughout the province. By using virtual hearings they can participate from literally anywhere, as long as there is a trusty internet connection.  This will help those who may have been deterred from asserting their legal rights in the past.
• Improved client representation. With no restrictions due to geography, divorcing spouses and parents can choose representation by any lawyer in the province. Those in remote areas (like rural Ontario or northern communities) can more easily retain lawyers.
• More secure and efficient. The use of virtual hearings gives rise to many efficiencies. Litigants can participate in a hearing from the privacy of their own homes.
• Better safety for the vulnerable. Especially in family situations that involve domestic violence or emotional abuse, there is a great deal of relative safety of a virtual hearing process. It prevents abusive parents and former spouses from engaging in physical intimidation or subtle in-person coercion.

And (We Think) The Winner Is…

So where does all this leave us? The pandemic has forced society to make many changes – some of them unwanted ones. But as the past two years has shown, the use of virtual Family Courts has actually been an improvement over the traditional in-person courtroom model, from the litigants’ own standpoint. (Plus, they are also convenient for the Family Judges who preside over them). 

Here at Shulman & Partners LLP, we believe that virtual hearings are a viable, safe, and fairness-enhancing replacement for most in-person proceedings. Let’s embrace their continued use as a positive and progressive improvement to the Canadian Family Justice system.