Kudos to Doug Downey for investing in technology for our family court system

But this transition also highlights the stark realities of the “digital divide,” – which the Oxford dictionary defines as “the gulf between those who have ready access to computers and the internet, and those who do not.” That technology gap already has a palpable impact on equitable access to justice.

Minding the gap

Let’s start with the good: The convenience of virtual hearings, especially in family law cases, is undeniable. Parents can attend crucial hearings from their homes, which saves them time and spares a lot of inconvenience. They are no longer obligated to pay their lawyers extra travel time to get to a physical courthouse.

However, in many communities across Ontario, people lack access to high-speed internet required for seamless virtual participation. Imagine a parent's shoddy internet connection disrupting a critical parenting time hearing. The personal consequences could be severe and long-lasting.

And mere problems with internet connectivity are just the beginning. Some sectors of the Canadian population – often those in low-income regions – are not well-equipped for the transition. Many families still lack the fundamental basics that make virtual hearings feasible, such as a suitable computer or laptop and access to a fully private space from which they can participate.

Not just a tech problem

There are admittedly other challenges with virtual hearings. Its detractors point to shortcomings affecting procedure or evidence and fear that these can especially impair the substantive rights of family litigants.

One critique focuses on the integrity of a witness’s testimony. If a court hearing is being held by Zoom from within a litigant’s home, for example, there is the potential that they will be coached by others from the sidelines, off-camera. The looming presence of intimate partner violence could also be a factor. Similarly, the unavoidable presence of children or other family members can lead to a lack of privacy, which might impact the witness’ feeling of freedom to give full and frank evidence.

The other concern is about giving people their “day in court.” As the thinking goes, there are already too many litigants living in remote communities who are not well-served when it comes to having centres for justice in close geographical proximity. For these people, attending a hearing might mean travelling to the nearest courthouse for many hours. If there is a greater move towards remote hearings, this will exacerbate the feeling of isolation for litigants. Being behind a screen will only hinder their feeling that they have received justice from the court system.

Funding the solutions

Whatever these lingering criticisms, the money earmarked recently by Attorney General Doug Downey will be well-spent. The tech-targeted funding boost will at least help ensure that all participants – regardless of location or economic status – have reliable access to virtual proceedings.

For example, the money could be used to set up justice “hubs” in libraries, the SCJ’s family law information centres, or empty SCJ courtrooms for parties who cannot access the required technology. Perhaps it could fund the instalment of secure spaces in community centres, where virtual hearings could be held. Or, it might be used to subsidize technology for low-income families.

At its core, the government’s move is a positive step towards eliminating barriers to fair and equal access to justice. Undeniably, the shift to virtual hearings in Ontario's family court system offers many tangible benefits:

• It optimizes the availability of judges who no longer need to travel to the courthouse or remote regions. This promotes efficiency within the justice system.
• It eliminates the need for litigants to sit around in the courthouse hallways, waiting until their matter is called. This can save them time and stress and avoid lost income and childcare fees.
• It can make the justice system more approachable and relatable to litigants. By necessity, Zoom hearings lack some of the formality and stiff decorum of a physical courtroom presided over by an in-person judge, which some litigants might find intimidating.
• Access is straightforward: Most people can figure out how to attend a virtual hearing through Zoom – even if it's with the assistance of a friend, family member, or employer.
• The cost savings are considerable. There is no travel, no traffic, no parking. Court security line-ups, confrontations, and courthouse conflicts are all eliminated. Lawyers’ fees for attending hearings are significantly reduced.
• Clients can choose their preferred lawyer from anywhere in the province.

Notably, the shift to virtual hearing can indirectly address some of its participants' individual or personal vulnerabilities, giving them heightened protection along the way. For example, some litigants might find that going to court in person, confronting an ex-partner, and dealing with conflict can take a toll on their mental health. Participating in a hearing from the safety and privacy of their homes can be far healthier and more appealing.

The bottom line

These are all multifaceted issues, requiring a comprehensive approach to a solution. But it all starts with integrating more technology into our legal proceedings while stepping up our continued advocacy and innovative solutions. As legal professionals, we must support and contribute to these advancements and proactively address any disparity and inequality. The overarching goal must be to create an accessible family court system that allows everyone to fully participate in a legal process regardless of their circumstances.

Greater funding, heightened awareness, and strident advocacy are all the keys to fully bridging the digital divide so that technology enhances everyone’s ability to seek justice rather than hinder it.