Digital Access to Justice: A Post-Pandemic Review of the Ontario Family Justice System
Sian Shin, 3L, University of Toronto Faculty of Law
1. INTRODUCTION
The Ontario family justice system is one of many entities upon which the COVID-19 pandemic forced a long-awaited technological modernization. In a short period of time, Ontario family courts have gone through a major transformation, from rigid in-person services and paper filings to Zoom courts and a completely electronic filing system. As is the case with any societal change or advancement, this digital shift has come with new, perhaps unforeseeable, barriers in addition to all its benefits.
This paper focuses on access to justice in terms of access to technology. When thinking about access to justice, the starting point is the broad range of legal problems experienced by the public – not just those adjudicated by courts. Since this paper focuses on everyday legal problems from the perspective of those experiencing them, the discussion is not wholly centered on the formal justice system (i.e. courts, lawyers and judges) and its processes.[1]
In any discussion of access to justice, I believe it is of the utmost importance that intersectionality be the lens through which we examine digital equity. Intersectionality is a legal term coined by Professor Kimberlé Crenshaw in 1989. Professor Crenshaw defines intersectionality in today’s context as the following:
It’s a lens, a prism, for seeing the way in which various forms of inequality often operate together and exacerbate each other. We tend to talk about race inequality as separate from inequality based on gender, class, sexuality, or immigrant status. What’s often missing is how some people are subject to all of these, and the experience is not just the sum of its parts.[2]
Intersectionality must be the primary perspective we take in analyzing digital access to justice issues.
For Ontario’s family justice system to resolve the unprecedented access to justice issues that have arisen from the pandemic-induced digital shift, we must acknowledge that these issues cannot be siloed from one another. The issue of digital access to justice is clearly intertwined with other non-legal, systemic barriers. If we can clearly and critically recognize the ways in which various structural inequities exacerbate each other, it will only bolster our ability to see how severely individuals are impacted by a lack of digital access to justice. An intentional, in-depth acknowledgement will ultimately better equip the Ontario justice system to come up with effective and efficient resolutions.
This article reviews some of the existing literature on digital equity in access to justice and findings of interviews I conducted with family law experts and practitioners. The article concludes with a summary of various proposed solutions. As stated by David Hodson, “the bright new world of digital family justice cannot lead to more inaccessibility of justice.”[3] This should be a guiding caution.
2. IDENTIFIED BARRIERS TO DIGITAL EQUITY
The sudden shift to virtual services in 2020 forced upon the system by the COVID-19 pandemic has exacerbated certain issues for the most marginalized groups and created new categories of individuals facing access to justice challenges. Access to technology increasingly determines access to justice.[4] This access can be limited by a plethora of legal, non-legal, and social barriers such as the affordability of new technologies, digital literacy, reliable internet connectivity, access to private spaces for virtual proceedings, language proficiency, as well as more intangible factors such as stress and trauma.[5] The combined issues of digital inequity and impaired access to justice can create a “double set” of barriers that occur before help is sought, during online searches, and while using digital legal resources.[6]
3. CURRENT GAPS: WHO IS LEFT BEHIND?
Based on a review of the literature, the communities most affected by digital access to justice issues are:
a. Self-represented litigants;
b. Individuals whose first language is not English or French;
c. Survivors of intimate partner violence;
d. And seniors.[7]
Although these communities are separated into distinctly labelled categories, it is crucial to reiterate that many individuals fall under more than one of the above categories, and that various forms of inequity related to digital access to justice may compound each other.
a) Self-represented Litigants
The prevalence and disadvantage of self-representation in Ontario family courts was documented before the COVID-19 pandemic. According to Justice Annemarie E. Bonkalo’s 2016 report on the Ontario family justice system, more than half of Ontarians accessing family court in 2014 and 2015 were self-represented.[8] The data reflected in the Bonkalo report evidenced significant disadvantages imposed on self-represented litigants, including the fact that self-represented litigants generally end up having worse outcomes with financial and economic issues. Additionally, the data also pointed to the immense emotional and psychological strain that self-represented litigants experience during the court process.
Although the Bonkalo report is about the Ontario family justice system in the pre-pandemic era, it shows that long before the pandemic many individuals struggled with online legal resources because they found them confusing, insufficient, or overwhelming.[9] This speaks to how many online legal resources – especially given their increase to today – can be detrimental and counteract their intended purpose of increasing access to justice, especially for the most marginalized individuals.
As the Director of the Family Justice Centre, Jason Goodman works with low-income, self-represented litigants in Ontario. Goodman notes that what he hears most from clients is confusion about the court process, which ranges from confusion about how to navigate a specific virtual court procedure all the way up to general confusion about what steps to take to advance their case.
Dana Rotenberg, National Director of Pro Bono Students Canada, emphasized the importance of court forms for self-represented litigants, especially in family law. “In family law, if you don’t have [good] court forms, you’re at such a disadvantage – even if you can get in the door, and there are just not enough resources for that.”[10] Because the physical closure of courthouses meant that self-represented litigants could not access the offices of court staff, duty counsel, or Family Law Information Centres as they could before the pandemic, using court forms became even more challenging.[11]
In addition, recent studies examining the impact of the pandemic on Ontario family justice have revealed how self-represented litigants were further disadvantaged by changes to services and procedure. The issues faced by many self-represented litigants included failing to receive login information for court, being excluded from e-filing portals, and not receiving Zoom call information for virtual hearings.[12] The pre-pandemic family court system was already known to behard to navigate for self-represented litigants, but new digital processes have made it extremely difficult for self-represented litigants to succeed in the court system.[13]
This said, there are undoubtedly notable benefits to these technological innovations. For instance, Lauren Calderwood, Duty Counsel Manager of the North York family court, noted that one significant positive result of the digital shift is the entirely virtual program for duty counsel, which is also available over the phone.[14] Established by Legal Aid Ontario, this virtual model allows individuals to call a phone number, leave a message, and then be connected to duty counsel before their court date.[15] This is a great improvement given that before the pandemic, neither the courthouse nor Legal Aid Ontario offered any advance services – instead, self-represented litigants had to simply show up early on their actual court date and prepare with duty counsel moments prior to appearing before a judge.[16]
Yet, as much as it is important to recognize the benefits of the shift to virtual court services, we must be cautious about not discounting the problems and disadvantages faced by other self-represented litigants, especially considering that those who experience the negative aspects of these changes are the most marginalized in our society.
b) Individuals whose first language is not English or French
Although the legal field has slowly but surely moved towards using plain language in support of increasing access to justice, legal and court-related websites still lack multi-lingual content.[17] For those who use languages other than English, this is a significant barrier, both during the court process and even before it begins.
This issue is especially pertinent in a city like Toronto, one of the most diverse, multicultural cities in the world. The 2021 City of Toronto Census found that 42.5% of Toronto residents had a mother tongue other than English or French. In addition, compared to 2020, a greater proportion of Toronto residents in the 2021 census had no knowledge of either official language, English or French.[18]
Meanwhile, the vast majority of online legal resources and websites that are available to those accessing the Ontario court system are completely in English or French, with no multilingual content. Before the pandemic, litigants had access to in-person translation and interpretation services through the Family Law Information Centres located in each family court.
However, once courthouses closed, individuals with language barriers were forced to find other ways of getting connected to interpretation services, like searching for resources on the Internet or making phone calls to organizations. This in itself is a real obstacle, as Rotenberg pointed out: “I can’t imagine how many people don’t even pick up the phone because of this language barrier.”[19] Goodman added, “Anecdotally, my observations are that people whose first language is not English or French are more frequently affected by the challenges with virtual access to the legal system and services.”[20]
The Barbra Schlifer Commemorative Clinic’s 2020-2021 annual report summarized how the clinic adapted their services to remain as accessible as possible for marginalized and racialized women who have survived abuse.[21] The annual report emphasized a notable increase in the number of clients seeking interpretation services.[22] In total, a reported 6,180 individuals sought out the Clinic’s social purpose enterprise, Interpretation Services Toronto (IST).[23]Clinic staff noted that the pandemic-induced transition to digital court services was particularly challenging for those whose first language is not English or French.[24] Given that the virtual court filing system is difficult enough to navigate for individuals who are fluent in English, it is even more challenging for those with a language barrier.[25]
It has been a huge benefit for the Clinic’s clients to have access to IST. Clinic staff explained that in addition to having these services available for all clients, it has been crucial to provide interpreters with trauma-informed training to ensure that they are prepared to support individuals who have survived gender-based violence and forms of abuse.[26]
c) Survivors of intimate partner violence
As a clinic providing comprehensive services to survivors of intimate partner violence and other forms of abuse, the Barbra Schlifer Commemorative Clinic saw a 38% increase in the demand of their services in their 2020-2021 year from the previous year.[27] This percentage increase lines up with the significant increases in both the amount and severity of intimate partner violence during the pandemic, as evidenced by many studies.[28] This issue involved victims facing new barriers in leaving abusive relationships, especially during the lockdown period, and experiencing even more stress and more violence from their partners.[29]
Perhaps the most beneficial result of virtual court services for survivors of intimate partner violence is the safety aspect of not needing to face their abuser in-person during a court appearance. For survivors of intimate partner violence, not having to deal with the added concern of fearing for their safety because they have to attend an in-person court appearance and be present in the same room as their abuser is a huge benefit. However, abusers often exploited the legal system during the pandemic by bringing various motions, refusing to provide financial disclosure, and so on.[30]
d) Seniors
Another major group affected by the issue of digital access to justice is seniors. Calderwood has observed that even if senior litigants have access to a phone, many do not know how to navigate the necessary digital steps such as sending photo scans of court materials or accessing a Zoom meeting for a court appearance.[31] Calderwood emphasized that “with an aging demographic, we need to be mindful that if someone does need to be in person for court, we need to be flexible.”[32]
Referring back to the lens of intersectionality, this age barrier is often combined with other social barriers discussed earlier in this paper to further marginalize seniors. According to a report from Employment and Social Development Canada, among all seniors in the Canadian population, 30% were born outside of Canada, compared with 21% of the total population.[33] While most seniors speak either English or French, about 63% of immigrant seniors who arrived in Canada from 2012 to 2016 reported that they were unable to speak either official language.[34] Additionally, age was also found to play a more defining role for people with lower household incomes.[35]
4. PROPOSED SOLUTIONS
There are several solutions that have been proposed in existing literature and by family law professionals. For example, some steps taken by Legal Aid BC are: collaborating with community partners across BC; offering a live chat feature on its website; engaging in outreach at various BC courts to provide referrals and assist people in navigating court processes; and supporting intermediaries (such as community workers, and Indigenous Elders) through free legal training.[36] Below are the key solutions to which I would like to draw special attention.
a) Community-based intermediaries
As noted in the 2021 Legal Aid BC Report, “intermediaries can act as vital bridges to digital legal resources or other legal services.”[37] Community works and advocates can support people in personalized ways, offering the empathy and human insight needed to navigate non-legal issues intertwined with the legal process, including stress, trauma, cultural backgrounds, and personal circumstances. This human interaction provides the individualized emotional support that cannot be easily replicated digitally.[38]
Rotenberg emphasized that family law resources like PBSC’s Family Justice Centre can work with intermediaries to support people in drafting their court forms.[39] Rotenberg explained that there has also been a push for various organizations to partner with local libraries and non-profit organizations already embedded in smaller communities to expand the reach of people they can assist in drafting court forms.[40] She also noted that you don’t have to be a lawyer to support people: if our family justice system can develop a service that is a combination of self-help legal guides and a professional with at least some knowledge or training in family law, but who may not necessarily a lawyer, that has great potential to significantly increase the extent to which people can receive quality support in drafting their court forms.[41]
b) People-centred digital design
Digital design of online legal resources that may be detrimental to litigants include issues such as the content being buried and not easy to find within the website, the navigation of the website itself being unclear, and online content that reflects prejudice, or is not culturally relevant or safe.[42] In order to create dispute resolution processes with user-centered design, we must focus on hearing from the people who have the most barriers to accessing the justice system and avoid solely talking to lawyers or judges who are insiders in the legal system.[43]
The Barbra Schlifer Commemorative Clinic also pointed to how problematic it has been for the most marginalized clients to have a lack of consistency among different courthouses in providing online services. For example, the Clinic has seen a notable number of clients who are confused about which Zoom link to access for a specific court date, how to access it, and so on.[44]
According to the Cyberjustice Laboratory, where experts study how technology can be used to increase access to justice, completely new procedural models must be created – we cannot just use the same rules and principles of an in-person court hearing for an online hearing.[45]
c) Equal opportunities for in-person and digital access
One of the most frequently emphasized solutions throughout existing literature and interviews with professionals is having an equal combination of digital legal technology and face-to-face legal services that are trauma-informed and culturally relevant.[46] Having resources and funding dedicated to both online and offline options equally would contribute to having convenient, free access to empathetic, responsive, culturally safe and trauma-informed human help in navigating legal processes.[47]
Calderwood emphasized that “One size doesn’t fit all. One size never really fit all.”[48] Given that we cannot assume everyone is the same, we cannot treat people in the same way procedurally. She expressed that there is a dire need for the justice system to equip individuals with the choice between accessing court services in person or online.[49] There seems to be a clear consensus among family law professionals that we cannot have the virtual option as the only option – rather, we must offer it as an alternative to in-person supports that existed prior to the pandemic.
5. CONCLUSION
As we enter the post-pandemic era and move towards making more positive, effective changes in our family justice system, all justice providers must be critical in analyzing all the gaps in our system and consider all issues through an intersectional lens. When legislators, courts, and service providers develop technological advancements, they must comprehensively examine how issues such as gender-based violence, systemic racism, language barriers, and ageism can affect the very people for which this technology is created.
As the Right Honourable Beverley McLachlin powerfully once said, “Justice will always be a human endeavour. The problems that occupy the justice system are people problems, and they are difficult, diverse, and deeply serious. Using technology is not an end, but a means to better justice.”[50]
Author’s Note: This paper was initially written in December 2023 while I was a family law student caseworker at Downtown Legal Services (DLS). Thank you to Richard Teicher, the supervising lawyer for DLS family law division, for his invaluable guidance and support. I would also like to thank Dana Rotenberg, Jason Goodman, Lauren Calderwood, and representatives of the Barbra Schlifer Commemorative Clinic for generously sharing their time and expertise for the purposes of this paper.
[1] Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, 2013).
[2] Katy Steinmetz, “She Coined the Term ‘Intersectionality’ Over 30 Years Ago. Here’s What It Means to Her Today”, TIME (20 February 2020), online: <time.com>.
[3] David Hodson, “The Role, Benefits, and Concerns of Digital Technology in the Family Justice System” (2019) 57:3 Family Court Rev 425.
[4] Claire Houston et al, “Ontario family justice in ‘lockdown’: Early pandemic cases and professional experience” (2022) 60:2 Family Court Rev 241 at 250.
[5] Ibid.
[6] Kate M Murray, Achieving Digital Equity in Access to Justice (Vancouver: Legal Aid BC, 2021) at 3.
[7] Ibid.
[8] Justice Annemarie E Bonkalo, Family Legal Services Review (Toronto: Ministry of the Attorney General, 2016) [The Bonkalo Report].
[9] Ibid.
[10] Dana Rotenberg, “Interview about digital equity in access to justice” (17 November 2023) via oral communication [communicated to author].
[11] Ibid.
[12] Houston et al, supra note 4 at 251.
[13] Ibid.
[14] Lauren Calderwood, “Interview about digital equity in access to justice” (28 November 2023) via oral communication [communicated to author].
[15] Ibid.
[16] Ibid.
[17] Murray, supra note 6 at 6.
[18] City of Toronto, Backgrounder, “2021 Census: Language” (19 August 2022).
[19] Rotenberg, supra note 10.
[20] Jason Goodman, “Interview about digital access to justice” (16 November 2023) via oral communication [communicated to author].
[21] Barbra Schlifer Commemorative Clinic, Essential, Resilient, Strong: Annual Report 2020-2021 (Toronto: United Way, 2021) [Barbra Schlifer Report].
[22] Ibid.
[23] Ibid.
[24] Barbra Schlifer Commemorative Clinic, Clinic Staff, “Interview about digital access to justice” (1 December 2023) via oral communication [communicated to author] [Barbra Schlifer Interview].
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] See e.g. Halina Lin Haag et al, “The Shadow Pandemic: A Qualitative Exploration of the Impacts of COVID-19 on Service Providers and Women Survivors of Intimate Partner Violence and Brain Injury” (2022) 37:1 J Head Trauma Rehabilitation 43.
[29] Barbra Schlifer Interview, supra note 24.
[30] Ibid.
[31] Calderwood, supra note 14.
[32] Ibid.
[33] Employment and Social Development Canada, Social Isolation of Seniors: A Focus on New Immigrant and Refugee Seniors in Canada (Ottawa: Employment and Social Development Canada, 2018) at 8.
[34] Ibid.
[35] Murray, supra note 6 at 5.
[36] Ibid at 5.
[37] Ibid at 22.
[38] Ibid.
[39] Rotenberg, supra note 10.
[40] Ibid.
[41] Ibid.
[42] Murray, supra note 6 at 6.
[43] National Self-Represented Litigants Project, “Going virtual: Facilitating or foreclosing the justice system” (31 October 2023), online (video): <youtube.com> [Going virtual video].
[44] Barbra Schlifer Report, supra note 21.
[45] Going virtual video, supra note 43.
[46] See e.g. Murray, supra note 6.
[47] Ibid.
[48] Calderwood, supra note 14.
[49] Ibid.
[50] Beverley McLachlin, “Access to Justice: A plea for technology in the justice system”, Law360 Canada (17 July 2020), online: <law360.ca>.