Notice to the Profession – Central East Region – Spring 2021 Family Trial Sittings

NOTICE TO THE PROFESSION AND FAMILY LAW LITIGANTS – CENTRAL EAST REGION

RE: SUPERIOR COURT OF JUSTICE, FAMILY COURT – SPRING 2021 TRIAL SITTINGS

As you are aware, the suspension of regular court operations during the COVID-19 health pandemic had resulted in trials being delayed.

We will be hearing trials and long motions in the upcoming trial sittings. All matters will be heard exclusively virtually by Zoom.

Cases can be set down for a hearing in the sittings in one of two ways. The Case Management judge can set the matter down for the sittings at any time if her or she deems appropriate. Alternatively, one or more parties can submit the Request for Trial or Long Motion Form by e-mail the Trial Coordinator by no later than March 30, 2021. In either case, parties and counsel shall confirm that they have the technological capability for a virtual hearing among other things.

Cases shall be triaged with priority will be given to child protection matters, pressing parenting issues and financial issues in that order.

As with trial sittings in Central East Region before the pandemic, cases that are set for trial or long motion shall proceed on standby. However, there shall be only two weeks of trial sittings commencing May 25, 2021. The first week of the regularly scheduled sittings shall be devoted to Trial Management Conferences.

Trial Management Conference

Trial Management Conferences are not being routinely scheduled. However, if your matter is set down for trial either by the case management judge or because your case meets the triage criteria and has been selected to be heard in the May 2021 trial sittings, a Trial Management Conference will be then be scheduled by the case management judge or by the Trial Coordinator for a date between May 17 and 20, 2021.

At the Trial Management Conference, the judge will review the necessary logistical arrangements for the trial or motion with counsel and parties. Due to time constraints, the judge may not have time to discuss settlement.

Documents for Trial or Long Motion

Parties are still bound by the timelines set out in the Family Law Rules for the delivery of documents. As the Trial Management Conference may not be held until shortly before the commencement of the sittings, it is important that counsel and parties ensure that they have complied with the necessary deadlines.

Trial Record

Your matter will not be called until your Trial Record has been served and filed.

The Trial Record shall be filed through the Justice Services Online Filing Portal. Information regarding how to register for the JSOFP and how to file documents can be found at: https://www.ontario.ca/page/file-family-court-documents-online

At this time, two copies of your Trial Record must be filed physically at the courthouse and an electronic copy must be filed. The paper copy of the Trial Record shall not be filed at the courthouse until it has been filed via the JSOFP.

The physical and electronic copies of your Trial Record must be identical. That is:

Both must have a Table of Contents (and the electronic copy must be hyperlinked);
All Tab numbers must be consistent;
All page numbers must be consistent.

It would be helpful but not essential if the Table of Contents for all documents could be hyperlinked to the document.

We are hopeful that once a universal document sharing platform is deployed across the Province that his system of dual filing will be eliminated.

Exhibits

All proposed Exhibits that you intend to rely upon at trial must also be served and filed in advance of your trial through the JSOFP. Again, two copies of your Exhibit Brief must be filed physically at the courthouse and an electronic copy must be filed at electronically.

The physical and electronic copies of your Exhibits must be identical. That is:

Both Exhibit Briefs must have a Table of Contents (and the electronic copy must be hyperlinked);
All Tab numbers must be consistent;
All pages must be numbered, and the page numbers must be consistent.

Physical Filing of Trial Record and Exhibits

In order to streamline the filing of Trial Records and Exhibits needed for these trial sittings, a temporary designated drop-off window at the filing counter has been created. You will not be required to ‘take a number’ at the filing counter to drop off these materials.

The Trial window is not manned by court-staff, and no advice will be offered. Only Trial Records and Exhibits (with corresponding Affidavit of Service) may be left at this location; they will be collected and logged into the court system daily. Any other document deposited at this counter will be disposed of and will not be deemed to have been filed in your action.

Being Called to Trial

At the Trial Management Conference, the presiding judge determine that your matter is ready to proceed. You will then be notified by the Trial Coordinator of the date and that your matter will proceed, and you will be provided with a Zoom link.

Unless otherwise advised, you should expect that your trial will begin each day at 9:300 a.m. and end each day at approximately 4:30 p.m. The judge hearing the trial will determine the timing and duration of lunch breaks and morning and afternoon recesses.

Virtual Trials

The following guidelines apply to virtual trials/long motions:

Counsel and self-represented parties must familiarize themselves with how to share documents/share their screen on the Zoom platform; this will be discussed further with the judge at the Trial Management Conference. Counsel and parties should do a practice run in advance rather than waiting to the day of the proceeding.
The parties shall prepare an email distribution list to which additional documents may be circulated during trial, if necessary;
Parties and counsel shall ensure that they sign into the Zoom platform with their full name.
The parties must ensure that their witnesses are available and can participate via Zoom at all times during the course of the trial. To that end, the parties shall also ensure that all of their witnesses have access to and have tested the technology necessary to testify virtually, ahead of the trial.
Counsel shall log into the Zoom meeting 15 minutes before the start of the hearing day to address any connection issues.
It is a party or counsel’s responsibility to ensure that their witnesses have been provided with the zoom-link for the trial, and the approximate time that the witness is expected to testify. The Court does not do this for the parties. Witnesses should be advised that they may be required to wait in the Zoom waiting room before testifying.
The parties shall immediately review and provide each of their witnesses with an electronic or paper copy of the Superior Court of Justice “Best Practices and Etiquette for Remote Hearings” at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/remote-hearings/.
Counsel should also refer to Appendix A of the Guide to Best Practices for Remote Hearings: “On-Screen Tips for Counsel, Parties and Witnesses”, from the Best Practices Guide produced by The Advocates’ Society, OBA, FOLA, and OTLA, located at: https://www.advocates.ca/TAS/Publications/Best_Practices_Publications/TAS/Publications_Resources/Best_Practices_Publications.aspx?hkey=12ee9725-d4e8-408d-93bc-462a365c7d82
The parties shall clearly communicate the following instructions to each of their witnesses before they testify:
1. while the witness is giving evidence, the witness shall not review any documents or access any electronic resources (internet or otherwise), other than:
  1. those documents put to them during their cross-examination;
  2. such documents as they may ask and be permitted to review; and
  3. the affidavit sworn by the witness as their evidence in-chief;
2. while the witness is giving evidence, the witness shall not refer to or rely on a script or any notes, unless permitted by the Court;
3. while the witness is giving evidence and until the completion of such evidence, the witness shall not communicate with any other persons about the substance of their examination;
4. the witness may communicate with counsel or another person while on a break prior to the commencement of their cross-examination, provided that any such communication is consistent with counsel’s professional obligations and applicable rules of the court;
5. if the witness requires the assistance of a third party during his or her testimony (for instance, to assist with technology), permission to do so must be requested before the witness’ testimony begins; and,
6. the prohibitions on recording a court hearing under Courts of Justice Act (s.136).
With respect to documents to be put to witnesses during their examination in-chief, cross-examination or re-examination, counsel or the party conducting such examination should expect to put that document to the witness by using Zoom’s screen sharing feature. Permission from the trial judge may also be requested to send additional documents by email to the witness and all participants (using the trial distribution list).
The parties shall ensure that they have back-up telephone numbers for every witness they intend to call and that each of these witnesses has counsel’s phone number that they can call so that counsel and witnesses can communicate with one another in the event that the internet connection is interrupted or some other technical problem occurs.
Witnesses who wish to be sworn in on a religious book must have that book in their possession and must be prepared to identify it and show it to the Court before being sworn.
During their evidence, witnesses should have their camera positioned so that their whole face and hands are visible.
During witness examinations, the video display will be restricted to the trial judge, the witness, the examining lawyer (or party if self-represented) and opposing counsel (or party if self-represented). Other than those individuals, and the registrar, all other participants will be muted and their video function will be turned off (i.e their faces will not be shown on the screen).
During breaks, as much as is practicable, participants shall mute their microphones and turn off their video for the duration of the break, rather than disconnecting from the Zoom session. At the appointed time, participants shall turn on their video to signal that they have returned from break.
Any objections should be indicated visually by raising the palm of your hand to the video camera, upon which whoever is speaking shall cease speaking in order for the objection to be addressed. If that is not recognized within a reasonable time, the “Chat” function at the bottom of the Zoom screen can be used.
All counsel, parties and witnesses shall sign into the Zoom platform using their full names so that they can be easily identified by the registrar and the Court.
Everyone should be vigilant to any participant losing their connection by “dropping” off the Zoom screen and should voice that drop to the court immediately so that the proceeding can be paused until the participant reconnects.
Counsel are not expected to gown for Trial and may instead wear business attire. Make your best efforts to eliminate distractions.
All participants must try to locate a quiet area and minimize interruptions by others in the during the trial. If there are other individuals within hearing distance, they must be identified to the court immediately.
The virtual courtroom, using video or telephone, remains a formal court proceeding, and all participants are expected to maintain court decorum in the virtual world, just as they would in person.
It is strongly recommended that all participants in the trial use headsets with a microphone. This greatly assists the court reporter in picking up sounds and reduces feedback and echo on the line.
It is strongly recommended that counsel and parties use wired internet rather than Wifi if at all possible, as it tends to be more stable.

Regional Senior Justice
Mark L.J. Edwards
February 16, 2021