After having read rebuttals from Russell Alexander, Gary Joseph, Roslyn Tsao and Aaron Franks to my article on the recent return to in-person motions in Toronto’s Family Court, “The Zoom paradox: When a judge’s words and his court’s actions collide” https://www.law360.ca/ca/articles/2466343/print?section=ca/accesstojustice, I have been moved.
Russell Alexander is the founder and senior partner of Russell Alexander, Collaborative Family Lawyers. He is a very smart lawyer, a visionary in family law, a prolific legal writer and educator of lawyers, and one of few professionals who has a sharp eye for trends in the legal marketplace. Gary Joseph is by far one of Canada’s top family law trial counsel and the head of MacDonald & Partners LLP, a firm made up of many leaders in the family law world, whom Mr. Joseph has personally trained. He has been reported in over 350 family law decisions at all court levels and has appeared as counsel in the Supreme Court of Canada. He is a past winner of the OBA Award for Excellence in Family Law. Roslyn Tsao is an exceptional lawyer, mentor, educator and mediator with Epstein Cole LLP, a top tier family law firm founded by the late Phil Epstein OBM. Ms. Tsao is highly regarded in the family law bar and amongst the judiciary. She too is a past winner of the OBA Award for Excellence in Family Law. Aaron Franks is another one of Canada’s top tier family law lawyers with Epstein Cole LLP. He has generously educated thousands of lawyers with his legal analysis, writing and teaching throughout Canada in family law. He was recently celebrated for his professional excellence as the recipient of the 2026 Annual Mary Lou Benotto Award for Excellence in Family Law.
These four lawyers have responded to my article on the recent announcement by the Superior Court of Justice cancelling the use of Zoom for motions and requiring counsel and parties to appear in-person for motions under one hour, unless directed otherwise by a judge at a Case Conference.
These four lawyers are extremely intelligent. They know family law, really well. They have strongly held views on this announcement, and my article. They have publicly shared their views. They have made very compelling arguments. I have carefully considered their rebuttal, and so I have been motivated to provide a rebuttal to their rebuttal. My rebuttal, however, employs the second language I was taught growing up in a Jewish home – Sarcasm.
When Canada’s Superior Court judges collectively make a decision that affects tens of thousands of families going through separation and divorce, that decision must, by definition, be grounded in impeccable logic, sound judgment, and rigorous empirical data. It would therefore be beneath any reasonable person (me) to criticize such a decision – specifically the decision to abandon Zoom and require lawyers and litigants to appear live in court for short motions. This decision to return to the traditional practice of appearing live to argue a motion, as commented upon by my esteemed colleagues, has caused me to reconsider not only the rejection of technology for motions in family court, but the merit of a broader rejection of other technological advancements that have come to modernize our professional practices and/or our lives. My new thinking was inspired by the compelling arguments provided by my esteemed colleagues.
Let’s start with the abacus. I am now giving serious thought to getting rid of my calculators. The arguments in favour of the abacus are remarkably similar to those advanced in favour of mandatory in-person court attendance. My esteemed colleagues make the compelling argument about the missed opportunity to watch other counsel argue their motions before a judge. So too observing skilled mathematicians use an abacus is an excellent way to develop their proficiency in math. There is something genuinely character-building about moving beads across a frame and checking one’s arithmetic, bead by agonizing bead, while those new to arithmetic watch over. Any person interested in mathematics would be blessed with the opportunity to watch the masters of the abacus. Those who rely on electronic devices never develop true mathematical fluency, never internalize the rigour of computation, never build the foundational discipline that comes from working through a problem by hand. Something is genuinely lost when a younger mathematician cannot calculate, estimate or reason numerically without a calculator in their hand. My esteemed colleagues argue that new lawyers should not be intimidated by the courthouse. I agree. Neither should they be intimidated by manual arithmetic. Fine, we’ve now had calculators for decades. But that hardly justifies the ongoing use of them when there are compelling arguments to return to the use of the abacus. The abacus builds discipline, rigour, and a meaningful relationship with mathematics that punching numbers into a device simply cannot replicate. Yes, eliminating calculators would have consequences. Students would struggle. Engineers would slow down. Accountants would protest. The rate of mathematical error in commerce, medicine, and engineering would climb. But much like increased legal fees to clients, inconvenience to travel downtown, paying for parking and waiting for hours until your case is called for a 30 minute argument of a motion, the negative consequences of rejecting calculators are dwarfed by the benefits.
Then there is the automobile. The case against the motor vehicle is even more compelling. The damage to public health caused by cars, minivans, SUVs and trucks is well-documented. Sedentary lifestyles, air pollution and traffic fatalities are not trivial statistics. If we abolished vehicles, people would walk to their destinations. Obesity rates would decline. Communities would grow more cohesive. Neighbours would encounter one another on foot rather than gliding past one-another in climate-controlled vehicular isolation. Just like the argument that lawyers on Zoom are more likely to avoid settling cases, people walking to school and work are more likely to avoid diseases and illnesses. Just like it is much more productive for counsel to engage in real time, face-to-face negotiations of a family law case, so too children, parents and workers would greatly benefit in real time, from face-to-face walks to school and work. Just like clients who are used to paying much less in legal fees to resolve their matters since Zoom court became the norm and will now have to spend more, the former owners of cars will also save money. They will no longer pay for the purchase of a car, licencing, insurance, parking and repairs. Walking to school and work will eliminate those costs. My esteemed colleagues argue that Zoom has caused legal costs to escalate slowly. Assuming that is correct, so too driving causes heightened blood pressure, cardiovascular problems and heart disease to escalate slowly, like the proverbial frog in boiling water. Now, eliminating cars would also have consequences. The elderly and disabled would lose essential mobility. Rural communities would be severed from basic services. Emergency response times would be extended. These concerns are not unimportant. But much like the arguments that family law cases, via Zoom, are languishing and not getting settled because counsel are not together in-person in the courthouse hallways, similarly, the use of the car has decimated civility, neighbourliness, communal living and meeting on sidewalks. Just imagine the spike in social engagement and improvement in public health by outlawing cars.
Finally, I turn to the scourge of at-home video streaming. Were we to eliminate it, people would be compelled to leave their homes, and gather in cinemas, galleries and museums. Society would experience community. Art, history and theatre would be celebrated in the presence of friends and family. Much like my esteemed colleagues’ argument that the surge in the use of Zoom results in litigants bringing speculative motions whom resist settlement in favour of an all-or-nothing motion, the end to at-home video streaming would cause people to be far more selective with their choice of entertainment and sit through the entire show. My esteemed colleagues argue that that removing Zoom for motions actually increases access to justice, so too the removal of at-home video streaming would increase access to quality entertainment and would end the proliferation of poor-quality programming. In fact, there are some people who have rarely, or never, been to the ROM or AGO. Eliminating at-home video streaming would solve that. Plus, the obligation not to pause a film when one needs to use the facilities would encourage better planning and increased attention to the material. Mr. Joseph’s poignant arguments in favour of in-person motions, namely, the missed opportunities for young lawyers to watch and learn from the masters, the lost opportunities to connect with clients in person and the lost opportunities to connect with colleagues at the bar is a diabolical parallel to the proposal to eliminate at-home video streaming. Imagine that the only available option for entertainment required a shared communal experience of witnessing entertainment together, in the same room, at the same time. Just like motions shape outcomes and lead to settlement, sharing in the experience of art, history and theatre shape enjoyment and lead to engagement.
I trust the pattern is now apparent. Canada’s Superior Court judges and my esteemed colleagues have made very compelling arguments why we should abandon the use of Zoom technology in family court. I have been moved. But maybe we should not limit the reversal of modernization and technology to family court only. Calculators, cars and video streaming have also been a serious menace to society and we really need to give careful consideration to a similar reversal in practice. Much like my esteemed colleagues have purported to rely on statistics to support their arguments in favour of in-person motions (although I must have missed that endnote citation), I too rely on similarly uncited social science evidence. The question is not whether virtual hearings are perfect. Nothing is. The question is whether abandoning what works, in favour of what is merely tradition serves the administration of justice or the people administering it. Is it the former or the latter? I remain open to persuasion. Please submit your arguments in person. Parking is not validated.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, Acc.D.C., is a full-time Divorce Mediator/Arbitrator and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses
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