Court Suspension Extended to July 6th (and what that means for access to justice)

On May 5th both the Ontario Court of Justice and the Superior Court of Justice announced that in-person court hearings will continue to be suspended until at least July 6th.  Both courts promised to expand the use of remote hearings, but have not provided any details yet on how and when they will do so. 

At the Ontario Court of Justice, the operative Practice Direction has not been substantively updated since March 28th.   Only urgent matters relating to child protection, custody and access and parenting will be heard by conference call.  No financial issues can be heard, except refraining motions for FRO driver’s license suspensions, but since FRO isn’t issuing any new refraining orders during the pandemic, there should not be any of those cases before the courts.   The fact that the OCJ is not dealing with urgent financial issues is troubling.  Many of the families involved in court proceedings at the OCJ are high conflict, low income families.  It is specifically these families whose incomes will have been most suddenly and most drastically affected by the Covid-19 shut-down.  These families do not have the resources to hire private lawyers, mediators and arbitrators to help them resolve child support disputes.  They rely on the duty counsel and judges at the OCJ to help them to do.  Let’s hope that the OCJ recognizes this important role and opens up access to justice for support related issues soon when it increases “access (to) the Court’s services using remote means” as promised in its May 5th scheduling update.

At the Superior Court of Justice, litigants have been able to deal with urgent financial issues throughout the Covid-19 crisis.    The difference between the services offered by the two levels of court is likely due to practical operations issues, but the impact it has on perpetuating two-tiered access to justice highlights the importance of continuing to work towards a Unified Family Court throughout the province.   Unfortunately, the current Covid-19 changes to court operations are pushing us in the opposite direction.  The court rules have been changed by various Notices and Practice Directions, some of which apply across the province and some of which apply to certain regions.  In early April, each court region released a different Practice Direction governing how the family courts would expand hearings beyond emergency motions only.  The Toronto family court is still only dealing with urgent matters.  But, instead of sticking with the definition of an urgent financial issue being one with “dire financial consequences” as noted in the provincial Practice Direction from March, it changed the definition to “issues regarding the financial stability of the family unit”.  Remember, that Practice Direction only applies in Toronto.  In Kitchener, on the other hand, any discrete non-urgent issue can be dealt with at a case conference, according to the Practice Direction dated April 7th, which itself updated the regional Practice Direction dated April 2nd.  These are just some examples of the variations in practice from court to court.  There has not been this amount of procedural complexity in family law since before the Family Law Rules were introduced back in 1999. 

When the courts announce the details of the next stage of remote operations, they will have benefited from the various experiences of the different court regions and levels over the past month or so.  Let’s hope they do it soon, and in a way that makes it consistent, fair and easy for everyone who is involved in the court process to understand.