Guidelines to Determine Mode of Proceeding in Family

Please see the Regional Notices for scheduling protocols related to the application of the following presumptive guidelines including scheduling processes related to requests for changes in the presumption.

A. Overarching principles

These guidelines set out presumptive methods of attendance for events in family proceedings. In applying these guidelines, the Court will take into account the following general principles:

Discretion of the Court:
While presumptions for each event set out the default position of the Court, the final determination of how an event will proceed will remain subject to the discretion of the Court. This will take into account the issues in the proceeding, the expected length of the hearing, the evidentiary record, the status of the parties (e.g. self-represented litigants), the need for in person Interpreters, and access to technology (including virtual capacity at institutions and courthouses).
Access to justice:
While virtual platforms to conduct proceedings remotely have enhanced access to justice for many, the Court also recognizes that there are significant variations in the abilities of litigants to access and use the technology that is required for virtual hearings. Until such time as there is a means to provide access to technology to those who do not have it so that they can fully participate in a remote hearing, the Court will take this access issue into account when determining the appropriate mode of proceeding. In that respect, if remote proceedings are utilized, the needs of all participants must be met so they can fully and equally participate.
Self-represented litigants:
While the Court’s determination of the appropriate mode of proceeding will necessarily take into account the ability of litigants to access and effectively use technology for virtual hearings, the Court will also consider other circumstances uniquely related to self-represented litigants. Issues such as the inability to obtain timely assistance from duty counsel and court staff, needing support to use technology or the inability to adequately address issues in writing may mean that in proceedings involving a self-represented litigant, Courts may favour an in-person mode of proceeding.
In-person hearings important:
While the continued use of virtual hearings (or attendances) increases efficiency at many stages of the litigation process, in-person advocacy and participation remain an essential feature of our justice system. The court recognizes the importance of in-person attendances for more substantive matters; matters involving self-represented litigants, and so that training opportunities may be provided to newer counsel. These factors are to be considered in determining whether a presumption should be changed.
Hybrid options:
In determining the mode of proceeding and the application of the guidelines, the Court will also take into account whether some parts of a proceeding should be conducted virtually and other parts conducted in person. In other words, hybrid options will be considered where appropriate or necessary.
Impediments to a virtual hearing:
There may be statutory, security or other impediments to having a remote hearing in certain matters, particularly criminal cases, civil contempt hearings and other matters that deal with sensitive information (e.g. child protection cases). Moreover, a party’s or participant’s personal circumstances (e.g. disabilities or caregiver responsibilities) may make remote hearings less suitable.

B. Definitions of terms

“Virtual” = proceedings using a platform like Zoom video or audioconference or by teleconference.

“Hybrid” = proceedings in which some justice participants are appearing physically in the courtroom and others are participating virtually.

“In-person” = proceedings in which all parties, counsel and the judge are physically in the courtroom.

“Videoconference or audioconference” = connecting into a proceeding using a platform like Zoom through video and audio or audio only.

“Teleconference” = connecting into a proceeding via a telephone number to a landline.

C. Presumptive guidelines to determine mode of proceeding in family matters

The following guidelines set out the Court’s expectations for the default method of appearance for all family events that will be applied across the province. However, the Court also recognizes that some Regions, in particular the Northwest, Northeast and those with circuiting judges, will require greater flexibility in hearing more cases virtually.

(i) First appearances:

Each Unified Family Court location will decide whether first appearance courts will be held in person or virtually. In deciding whether these attendances will be conducted in person, the Court will take into account the availability of duty counsel and on-site mediation services.

(ii) Early or urgent case conferences and triage courts (where available):

All early or urgent case conferences and early intervention courts will be held by videoconference unless the Court specifies a different method of attendance.

(iii) Urgent motions:

All urgent motions will be heard by videoconference unless the Court specifies a different method of attendance when the event is scheduled. A party who takes the position that the urgent motion should be heard in person should include in their motion materials the reasons why the motion should not be heard by videoconference.

(iv) Case conferences, settlement conferences and trial management conferences:

All (i) case conferences, (ii) settlement conferences, and (iii) trial management conferences with a settlement focus, will be held in person unless a different method of attendance is approved by the Court in advance.

(v) Trial scheduling conferences, other trial management conferences and assignment court attendances (where required):

All trial scheduling conferences, trial management conferences where the focus is on preparation for trial and assignment court attendances (where required) will be heard by videoconference unless, at a prior conference, the Court has specified a different method of attendance.

(vi) Motions for procedural relief and motions on consent:

All motions on consent, unopposed motions and simple procedural motions will be conducted in writing. More complex procedural motions will be conducted by videoconference, unless the Court specifies that an in-person attendance is required.

(vii) Substantive regular/short motions:

Outside of Toronto and Windsor, in locations where regular motions in family cases are heard on mixed civil and family lists, substantive motions of less than an hour will be held by videoconference.

In Unified Family Court locations, Toronto and Windsor, regional practice direction or notice to the profession will direct the mode of appearance for these events.

All motions for contempt will be held in person.

(viii) Long motions:

All long motions will be held in person unless the Court has agreed to a virtual attendance in advance, which will be decided at the case conference.

If contempt is sought or there is a hearing alleging the wrongful removal or retention of a child, the motion will be held in person.

(ix) Trials:

All trials will be held in person unless all parties consent to a virtual trial and the Court approves. The Court may consider the option of a hybrid proceeding and whether a witness may be permitted to testify virtually by videoconference. Requests for virtual or hybrid trials will be addressed with the completion of the Trial Scheduling Endorsement Form prior to the scheduling of the trial.

(i) First hearing where child has been brought to a place of safety (5-day hearings):

5-day hearings will be heard virtually unless the Court decides that an in-person hearing is required, taking into account any concerns regarding: (i) parental participation in virtual hearings or (ii) Legal Aid support for these events.

(ii) Child protection lists or TBST appearances:

Child protection lists or To Be Spoken To appearances will be held by videoconference unless the Court decides that an in-person hearing is required, taking into account any concerns regarding: (i) parental participation in virtual hearings or (ii) Legal Aid support for these events.

(iii) Settlement conferences and trial management conferences:

All (i) settlement conferences and (ii) trial management conferences with a settlement focus will be held in person unless a different method of attendance is approved by the Court in advance.

(iv) Trial scheduling conferences, other trial management conferences and assignment court attendances (where required):

(v) Motions on consent and motions for procedural relief only (including 14B motions):

All motions on consent, unopposed motions or simple procedural motions will be conducted in writing. More complex procedural motions will be conducted by videoconference, unless the Court specifies that an in-person attendance is required.

(vi) Substantive/regular short motions:

Regional practice directions or notices to the profession will direct the mode of appearance for these attendances.

(vii) Long motions including summary judgment motions and temporary care and custody hearings:

All long motions, including summary judgment motions, and temporary care and custody hearings will be held in person unless the Court has agreed to a virtual attendance in advance, which requests should be raised at a prior court attendance.

(viii) Trials:

All Family Responsibility Office matters will be heard in person unless the Court directs a different method of attendance.

Refraining motions that are not held on regular FRO sittings at Unified Family Court locations, and those held in generalist locations, will be held by videoconference unless the Court directs a different method of attendance.

All Dispute Resolution Conferences will continue to be held by videoconference.