With Covid-19 our family courts have virtually ground to a halt. Yet, Skype has been readily available for many years and Zoom meetings are now routinely being used by members of the public in this time of social distancing.
In 2014, Justice D.M. Brown, in Bank of Montreal v Fabish, a commercial litigation case, had this to say about the Canadian legal system:
Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems…As a service it must be alive to the way in which the community it serves handles and communicates information…Our community has undergone radical changes in the way it handles and communicates information. Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide the most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces? Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future…
In the commercial law context, electronic trials have been conducted resulting in a paperless court. Witnesses have been permitted to provide testimony by way of the video conference. Such evidence is given orally, under oath or affirmation and is observable “live” as it would be with the witness present in the courtroom. Questions are asked and answered in the usual way. The witness can be closely observed. Findings of fact can be made, and credibility assessed. Indeed, in its June 2015 report, Best Practices for Civil Trials, a Task Force of the Advocates Society, video technology was recommended by the Advocates Society and recognized by the courts to have technologically advanced such that courts found that it is possible to make findings of fact and decisions about credibility based on video conference evidence.
Criminal courts have permitted witnesses to testify outside the courtroom and in a location other than the courthouse where the trial is taking place by means of closed-circuit television or otherwise. Many modern courthouses have witness rooms linked to a courtroom by a closed-circuit television system (CCTV).
In the family law context, Justice Ellen Murray, in the 2015 case, Paiva v. Corpening permitted the mother who was residing in Denmark to testify by Skype.
In 2014, The Supreme Court of Canada stated in Hryniak v. Mauldin that a culture shift is needed to ensure a just adjudication of disputes that is proportionate, timely and affordable.
The Ontario Family Law Rules and the Ontario Rules of Civil Procedure permit video conferencing.
However, despite, the “go ahead” to use technology, the family law courts, have all but shut down because of Covid-19. Why not use Skype or Zoom to conduct first appearance court, motions, conferences and in fact trials? Instead, all family law matters have been indefinitely adjourned. The backlog of cases will be unfathomable. Meanwhile, the risk of children remaining in abusive households, increased incidence of domestic violence during this period of isolation and of children being alienated from parents because of this pandemic goes unchecked. Only extremely urgent matters will be heard by teleconference and there are not enough phone lines to handle all these matters.
Task Forces are now being initiated to study the issue. In the meantime, the public, whom the legal system is supposed to service, is waiting and has been waiting for many years for reforms, including technological reforms, to be implemented.
Covid-19 is a wake-up call to the legal profession in general but it is even more important in the family law context to provide a better response to this pandemic than to close the family courts indefinitely without any real-time solution for the families that we serve. I, too, like justice Brown, vote for a court not of the past but of the future. With Covid-19, we all have now been propelled into the future and we can no longer wait for technology to take hold and be accepted by the judiciary and by lawyers. The public deserves a better and more immediate response.