Gary Joseph | Nov 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Guy Pratte's recent commentary in favour of in-person courtroom attendances continues the debate over this highly contentious issue. When I read his commentary, I was impressed by the quality of his written advocacy in favour of a return to in-person court. My first reaction though was disagreement with his position. However, upon rereading his views, we do agree on some very significant points although I still disagree on others.

I most emphatically agree (end have previously published this view) that the justice system in general and our courts in particular are a  pillar of our democratic society that must be preserved, properly funded and respected by all. But I do not agree that to do so requires in-person attendances for what Mr. Pratte describes (but does not fully define) as “significant matters.”

I also agree that trials should be in person. For all the reasons described by Mr. Pratte, there is no substitute for attending in court for this process. Having been counsel on a number of trials virtually during COVID, despite the best efforts of experienced judges and good counsel, much is lost in the trial process when viewed on a screen.

I write only from the perspective of family law counsel and perhaps that is why Mr. Pratte and I disagree on the issue of access to justice and virtual court. While most litigants dislike the litigation process, family law denied bring much more to the table. They are often coping with the emotional distress of a failed relationship. Parenting issues are particularly troubling and of course domestic violence plays an ugly part in many of these disputes. There is also childcare to consider. Asking a single parent to spend a day In court, often waiting to be called, is a terrible inconvenience and an expense that can and should be avoided where possible. Don't forget that upon separation there is very often financial strains that can be worsened by taking a full day off work. I could go on and on but the point I wish to make is that wherever possible, family law matters (other than trials and perhaps long motions and appeals) should be heard virtually.

Let me conclude by repeating myself as I often do (age related probably). I love going to court and I

love the decorum of it. I feel privileged to be part of that system. However, change is necessary and is often a good thing. COVID was and is horrible but it ushered in change that was too long in coming (one example is electronic filing). Technology will only improve and - can address concerns about the availability of it to those less privileged. We must increase access through technology. I do not believe that the quality of justice will necessarily be compromised.

By opening the once closed doors of justice to more of our society we will only increase the knowledge and respect of the general public for a system that is among the best in the world. Rather than reject it as a tool to deal with “significant matters,” we should look for ways to better virtual access and virtual technology.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law.

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