COVID-19 has shone a light on many issues across the province/country/world: issues that existed before the pandemic and that will remain with us after it is over. We have learned (and continue to learn) a great deal during this experience, and we can use that learning as we move through and past the pandemic.
In our work with women fleeing abuse, Luke’s Place Support and Resource Centre has seen the ways in which the pandemic has increased risk for women with abusive partners/former partners, made it more difficult for them to access many services including legal advice and representation, and created serious access to justice challenges.
However, we have also seen how, both individually and systemically, legal and court systems have come together to do the best job possible to ensure the safety and well-being of women and children fleeing abuse.
The family court system, forced by the public health protocols introduced to control spread of the pandemic, has been operating, in limited circumstances, virtually; something that it has largely resisted until now. There has been some discussion about keeping this momentum going once the public health need for it ends, even as the courts prepare to, slowly, begin reopening in-person appearances and services.
We applaud the court’s willingness and ability to adapt quickly to new ways of doing its work. There is no doubt that some, perhaps many, of the electronic mechanisms in place now should continue into the future, and will benefit all litigants as well as judges, lawyers, court staff and the system as a whole.
There are some aspects of a family law case — document filing, completing the Mandatory Information Program requirement, sharing materials, default hearings, scheduling, hearing of uncontested matters and more — where courts can and should move towards increased use of technology.
But there are downsides to be considered as well, and we are concerned about possible unintended negative consequences if we move too quickly to permanently implement procedures just because they have allowed the courts to operate during a (we hope) relatively short-lived crisis. Time is needed to see what the longer term implications of these emergency processes and procedures are.
As we have supported women throughout the pandemic, we have reflected on what virtual proceedings do not provide that is provided by in-person proceedings.
In-person court appearances, for example, allow the court to observe, live, the nuances of behaviour that cannot be fully observed or appreciated virtually. Especially in cases involving family violence, there is great value in judges seeing outbursts, glares, nasty tones of voice, threatening movements by one party and the frightened responses of the other. Even hearing yelling from the corridor can help the judge understand the dynamics between the parties.
In person, the court can sometimes corral a recalcitrant party more effectively than can happen virtually.
There are potential safety issues when working electronically: how can the court be certain the abusive party is not in a position to intimidate or coerce the other party when everyone is in their own space, with no one watching over things?
It is not just women fleeing abuse who are potentially harmed by too much reliance on technology. This can create barriers to justice for those who find the rules and procedures overwhelmingly complex, for those who do not have access to the required technology or the skills to use it; for those without adequate legal representation or other supports; for those who don’t speak or write English or French.
Perhaps of less concern, but still important, is the value of in-court appearances for lawyers, who learn their trade by watching others in action and by discussing cases in the corridor. We often work with new lawyers; we know from them just how valuable these connections are and how difficult they would be to replicate without lawyers spending regular time in courthouses.
In short, it is too early to make decisions about court procedures that will have long-term impacts. We need to take time to review what has happened during the pandemic, consider what kind of family court we want for the future and to discuss options with a wide range of stakeholders.
Especially when the life of a woman or child is at stake, we need to ensure that all parties have fulsome access to justice.
This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.