PHOTO: Brian Galbraith is the founder of Galbraith Family Law
In a petition directed to the Chief Justice and Attorney General of Ontario, a group of family lawyers has expressed opposition to the court’s decision to return to in-person hearings for most proceedings. Family lawyer Brian Galbraith says lawyers are concerned about barriers clients face with returning to in-person proceedings and that the petition received 324 signatures in less than 24 hours.
The Ontario Court of Justice resumed most in-person proceedings for family law on Apr. 19, with trials, case conferences and long motions, including summary judgment motions, temporary care and custody hearings held in person. Family lawyers may also request virtual or hybrid hearings, but approvals will be at the court’s discretion.
Galbraith says the shift to virtual because of COVID was good for the legal profession because it saved client costs and made the justice system easily accessible to everyone.
“We were happy about it because it meant that people could get to family court from their homes, and those in rural areas wouldn’t have to drive long distances to get to court. Regardless of where they live, people could choose their lawyer from another community and still participate in the court system.”
He says the court is moving backwards by returning to in-person hearings, which would increase client costs. For example, clients pay for lawyers to drive to the courthouse when proceedings are in person.
“We get to the courthouse, our hearing might be for 9 am, and we may have to sit in the courthouse until three or four or 5 pm waiting for our chance to speak to a judge,” he says. “Sometimes we can spend the whole day and not be heard by the judge, and it gets adjourned, and the client is paying for all that.”
Galbraith says that a court proceeding should be virtual unless the parties and their counsel agree otherwise or the court has a good reason for an in-person or hybrid attendance. “We did that during the pandemic, and we should continue. We shouldn’t lose the gains we’ve made during the pandemic. It would be very sad.”
Separation, divorce, and family law cases are also inherently stressful, and Galbraith says virtual hearings alleviate clients’ stress and are appropriate for domestic violence victims in the court system.
“It may create a greater sense of safety for folks in an abusive relationship because they can keep a greater distance from their spouse.”
While some judges have struggled with the transition to working effectively on virtual platforms, Galbraith says that will improve as the legal profession gets better with technology. “I see technology opening doors and creating greater accessibility. We just need to keep looking at how to use technology to increase access for everyone.”
Self-represented people can manage the technology and represent themselves successfully, and he says the courts can enforce in-person hearings as an alternative when there are accessibility issues. “We don’t want to say that nothing should be in person, but we’re suggesting that it start with virtual because that is accessible to most of the population.”