“We’re trying to get the message out there that we are open, but they are not coming to court, and that’s a huge concern for access to justice,” Justice Suzanne M. Stevenson, senior judge of the family court, said in a May 28 fireside chat organized by the Ontario Bar Association.
Senior Judge of the Family Court Suzanne M. Stevenson
“We can’t leave them behind because they’re a large part of the litigants that we see,” she told interviewer Katherine Cooligan, an Ottawa-based family law specialist and regional managing partner with Borden Ladner Gervais LLP (BLG). “So we need those in-court services still available. That’s a huge concern.
“What also concerns us,” she noted, “is that vulnerable litigants, like domestic violence victims, are not accessing the courts as much as they do normally, too. So we know that there [are] difficulties out there.”
According to a federal Department of Justice report citing 2012 figures, an estimated 40 to 57 per cent of parties are self-represented when they appear in court for family law issues. The percentage is believed to be even higher on filing, with estimates ranging from 64 to 74 per cent.
Stevenson said the Superior Court of Justice’s family law working group, made up of lawyers and judges from across Ontario, is actively exploring technologies that will make the system more accessible and efficient, including electronic continuing records and electronic endorsement records. But self-represented and vulnerable litigants will need services in the courts to help them upload those documents, she noted.
“We have to somehow work with the Ministry (of the Attorney General) to ensure that happens and they’re not left behind,” she said.
In fact, she observed, family law in particular will always depend on a critical, in-person component. “Family law is very emotionally driven,” she explained. “It’s very personal — and having that contact directly with parties in the courtroom makes a huge difference in resolving matters.
“We have the ability in family rules to conduct phone conferences,” said Stevenson. “But I can tell you from personal experience I don’t know how many of those cases I’ve been able to settle because I don’t have the person in front of me.”
Family law courts also deal with unique challenges when it comes to child protection, she added. “And that is an area where we need to continue to have case management and in-person contact meetings with litigants.”
If those important, in-person procedures cannot be maintained, she warned, the number of cases that go to trial is bound to increase, further clogging Ontario’s already overburdened court system.
Still, in the midst of COVID, maintaining physical distancing in often small family law waiting rooms, conference rooms and courtrooms will be a real challenge, she conceded. Some of those facilities sometimes handle 30 to 40 cases a day.
“There’s no question we’re not going to be able to do those large, to-be-spoken-to dates in person,” said Stevenson. “We have to do them by video. But there’s a real challenge in child protection because we have clients who are really without means.”
COVID-19 has added to the family court backlog, she said, although she commended the province’s family court judges for scrambling in the first two weeks of the pandemic to deal remotely with more than 50 COVID-19 child access cases.
Family courts are now expanding to deal with the backlog, noted Stevenson, and a number of regions are conducting virtual case conferences in an effort to settle them and chip away at the load.
But members of the family law bar and judiciary know that, in all likelihood, the worst is yet to come, she cautioned. “We all know that we are going to have a huge increase in motions to change because of the financial devastation that people are experiencing.”
Ontario’s family court system saw a similar trend following the 2008 financial crisis, but the launch of the Dispute Resolution Officer (DRO) program helped clear up a lot of those cases, said Stevenson. The province was looking at expanding the program before the pandemic, but no longer has the resources and DROs are currently available at only nine sites.
As family court judges expand their ability to deal with cases virtually, Stevenson urged family lawyers to take advantage of the spaces opening up. “We’re not hearing as much from the bar as we expected,” she said. “So I would encourage the bar to see if they can work with the other side of the case, whether that’s a self-represented litigant or the other lawyer, and get a date for a case conference and see if we can clear some of these issues off before they do become a crisis.”
Stevenson ended the interview by inviting family law practitioners to contact the Superior Court with any ideas they may have for improving family court procedures during these challenging times.
“We are going into uncharted territory,” she concluded. “We are ready, willing and open to receiving those suggestions.”
If you have any information, story ideas or news tips for The Lawyer’s Daily please contact John Schofield at john.schofield@lexisnexis.ca or call (905) 415-5891.