Online isn’t always better

courthouse

Family courthouses have been shuttered for most of the pandemic, with lawyers, clients, judges, clerks and those providing support services figuring out how to do their work remotely.

There have been some funny stories as a system not known for its modernity has pivoted – not always nimbly – to the realities of the electronic world: the lawyer who somehow turned on a cat face filter when appearing in court from his home office, a court support worker whose unsuspecting partner wandered, naked, into the room behind her only to find himself facing a judge, and so on.

Many lawyers have commented on how much easier going virtual has made their lives. No hanging around waiting for their case to be called; in big cities, no frantic travel from one courthouse to another; no need to dress quite as formally, at least from the waist down.

Others have lamented the loss of the in-person contact; the sorting out of issues during an informal chat in the courthouse hallways; the learning opportunities, especially for new lawyers, by watching more experienced lawyers do their job.

There have also been struggles for those not comfortable using technology or with only limited access to a computer and/or the internet. Those who had relied on the services available at in-person court found the shift to virtual court difficult.

Opening back up

Now, courthouses are beginning the slow process of reopening. It seems clear that court operations, from filing documents to administrative appearances to motions and trials, will remain hybrid, at least for awhile and maybe forever.

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

I hope some of the court-related functions that now take place online stay there. Electronic filing and dealing remotely with minor matters including adjournments and scheduling 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 – Family Law Information Centres (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. Waiting for a call-back from duty counsel is not always an option for someone in an unsafe situation.

Pre-pandemic, women often relied on a quick pre-court check-in with their lawyer or court support worker to prepare them for the hearing. Taking a few minutes after a court appearance to debrief and answer some questions helped survivors leave the courthouse with less anxiety. Those opportunities don’t exist when everything happens virtually.

Safety first and last

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 his friends or family, dodge him outside the courthouse or worry about him 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 his former partner when everyone is in their own space with no one watching over things? Especially where people do not have lawyers – and, in Ontario, that’s more than 50% of those involved in a family court case — who’s to know what the abuser might doing electronically to make it difficult for his former partner to feel safe while participating in the court appearance? Has he ordered pizzas to be delivered to her door every 15 minutes? Is he sitting outside her home sending her threatening text messages and letting her know that he can see her?

The behaviour of the abuser during a court appearance can provide important indicators of ongoing coercive control. Small gestures by the abuser, the way he moves his 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.

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