September 26, 2023

Ontario Household Courts are going again to in-person hearings – in lots of circumstances.  

That is in accordance with the May 30, 2023 Memorandum from the Chief Justice of the Ontario Superior Courtroom of Justice, addressed to the province’s attorneys and judges.

The Chief Justice advises that efficient June 15, 2023, new and consolidated Practice Directions will come into pressure, and can assist remodel Household Courtroom proceedings into one thing with extra flexibility than we noticed pre-pandemic. 

The New Directives

The 53-page Household Courtroom Observe Instructions cowl quite a lot of matters of curiosity to litigants, their attorneys, and the judges themselves.  However one of many key directives includes the principles round when a listening to can/have to be held in-person, and when it may be held just about.  

The Observe Instructions finally depart that call to the courtroom, nevertheless it set “presumptive pointers” that stipulate the default kind of attendance for every type of continuing.   As only a few examples:

  • All trials are held in particular person except all events consent to a digital trial and the courtroom approves.
  • All pressing motions can be heard by videoconference, except the courtroom specifies a special methodology on the time of scheduling.  
  • Conversely, all settlement conferences, and trial administration conferences with a settlement focus, are held in-person except the courtroom approves a special methodology upfront.

Nevertheless, a Household Courtroom can deviate from these rulings after taking into consideration what are known as “over-arching ideas” in how the presumptive pointers must be utilized.  They take note of an assortment of info, akin to: 

  • The problems within the continuing; 
  • The anticipated size of the listening to; 
  • The evidentiary document; 
  • The standing of the events (e.g. self-represented or not); and 
  • The members’ entry to know-how. 

The Observe Instructions additionally expressly acknowledge the advantages of each in-person and distant hearings, and permit for a hybrid possibility in some eventualities. (There are some said exceptions, akin to Contempt of Courtroom hearings which should at all times happen in particular person).

Apparently, the Observe Instructions additionally enable for regional variations to those basic guidelines dictating how specified proceedings are to be heard. Because the Observe Course explains:

The next pointers set out the Courtroom’s expectations for the default methodology of look for all household occasions that can be utilized throughout the province.  Nevertheless, the Courtroom additionally acknowledges that some Areas, particularly the Northwest, Northeast and people with circuiting judges, would require larger flexibility in listening to extra circumstances just about.

Our Take 

So far as a post-pandemic mannequin goes, we expect these newest pronouncements take a extra reasonable strategy – at the very least as in comparison with the earlier Superior Courtroom edicts that favoured in-person hearings. 

However in our view, they’re nonetheless a missed alternative to modernize the system, and to enhance entry to justice.

We expect that every one Household Courtroom hearings ought to presumptively be held remotely.  That is the very best, best, and most cost-effective route for shelling out Household justice within the province – and the previous three years has confirmed that it may well work.  (And naturally litigants preferring to proceed in-person must be given each probability to take action). 

What are your ideas on this newest post-pandemic directive from the Courts?