Why it can’t all happen online

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc., on November 2, 2021.

Last month Gary Joseph posed the question “Why go back to the courthouse?” and encouraged family law lawyers to speak up so our voices could be heard.

Family law lawyer A.J. Jakibowski took up the challenge and now I would like to add to the discussion.

My thoughts about returning or not to the courtroom are based on the work I do with both women who are dealing with family court after leaving an abusive partner and the legal advocates who support many of those women.

I agree with most of the points already made both to pro and con returning to a return to the courthouse. There is no doubt that both lawyers and judges have been slow to move into the electronic age. Ours is not a profession that takes quickly or easily to change. Think of the suspicion with which many of us viewed the arrival of fax machines, for instance, and now we think of them as quaint antiquities.

Similarly, most of us were quite comfortable with court operations as they were pre-pandemic. There were irritations, certainly, but it was what we were used to. Then, suddenly, in March 2020, we all had to get used to a very new world, and we adapted. We have become used to functioning online and have even found some advantages to it.

From my perspective, I hope that some of the court-related functions that now take place online stay there. Electronic filing and dealing with minor matters including adjournments and scheduling remotely get the job done more quickly and conveniently, and there appears to be little or no downside for anyone: court staff, judges, lawyers or clients.

But when it comes to in-person events – motions, conferences and trials – there are significant downsides to electronic proceedings in cases involving family violence, and this must be taken into account as we begin to consider what comes next in the post-pandemic world that lies ahead.

Many women rely on services available at the courthouse – FLIC and duty counsel, in particular – to assist them in real time. In some courthouses, family court support workers have office space, which, prior to the pandemic, allowed them to support women in person as they needed it; often as the result of a referral from the FLIC office or duty counsel. While those services continue to be available electronically, there is no capacity for survivors of family violence to get that kind of support on the spot and immediately.

On first glance, it might seem as though online court appearances are safer for survivors of family violence than in-person court appearances. There are, of course, physical and emotional safety advantages for a survivor when she does not have to be in the same room as the abuser or their friends or family, dodge them outside the courthouse or worry about them following her home.

But electronic appearances can present their own safety challenges. How can the court be certain the abuser 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? Especially where parties do not have lawyers, who’s to know what the abuser might doing electronically to make it difficult for their former partner to feel safe while participating in the court appearance?

Perhaps most importantly, the dynamic between the abuser and their former partner during a court appearance can provide important indicators of ongoing coercive control. Small gestures by the abuser, the way they move their body or a particular facial expression can strike terror into the survivor, making her more vulnerable to conceding her wishes in favour of those of her former partner. Yelling from the corridor can tell the judge a lot that carefully measured evidence may not be able to describe. A judge can see the misbehaviour of an abuser more easily in person and can then corral the behaviour accordingly.

Those dynamics and the demeanour of the survivor in responding to them simply cannot be seen over the telephone or in a small zoom rectangle the way they can in the courtroom, thus denying the judge important information that could support other evidence of abuse.

While it is true that many abusers manage to control their behaviour and present themselves well in court, not all do, and judges need to be able to see that in real life.

This was well illustrated to me early in my career when, during a settlement conference on my client’s motion for sole custody, her former partner – outraged by the list of his abusive behaviours I had just presented – jumped onto the conference table and made a lunge for my client. (Fortunately, she was not harmed.)

The judge saw instantly the truth of our claims and very quickly my client’s ex consented to the order we were seeking; an order that kept her and her young children safe.

An electronic or telephone settlement conference would not have offered that possibility.