Gary Joseph  |  May 2025

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

Some of the best family lawyers I have dealt with over my years at the bar were extremely tactical (most of whom are now retired or have passed away). They approached a file from a strategic point of view plotting the steps that would achieve the stated goals of their client. Most often these lawyers did not approach parenting matters in the same manner, recognizing the vast differences between pursuing financial matters and the best interests of children. These lawyers achieved great success for their clients through planning.

Today, strategy and tactics have become almost profanity in the family law world. I push back somewhat on this view and explain why later in this piece. However, one of the reasons why, in my view, this pejorative view of tactics now prevails in family law is a misunderstanding of the true meaning of a tactical approach. Let’s consider what tactics are not:

1. Waiting until the very last minute to respond to reasonable requests for consent or timetable extensions where there is no prejudice to your client is not tactical, but rude and uncivil conduct;
2. Refusing to respond to an offer to settle may be acceptable under the Family Law Rules, but it
   is not consistent with the goal of settlement wherever possible and is not tactical;
3. Uploading case law to Case Centre on the day of a motion is not tactical;
4. Repeatedly reminding opposing counsel that he/she is the opposite client’s third, fourth counsel is not tactical — it’s arrogant, irrelevant and unnecessary;
5. Constantly blaming the opposite party or his/her lawyer in letters, written and oral submissions is not tactical but shows an inability to understand that most (certainly not all) stories have two sides and an inability to present nuanced arguments recognizing same;
6. Taking every opportunity to attempt to embarrass opposing counsel in court is not tactical but uncivil conduct. It is demeaning to counsel who behave in this manner;
7. Failing to advise opposite counsel of obvious errors in his/her materials is not tactical but rude and uncivil conduct;
8. Becoming your client’s cheerleader rather than legal counsel is not tactical;
9. Failing to show proper respect for the bench at all times and especially where you disagree with a ruling is not tactical;
10. Interrupting opposite counsel’s submissions is not tactical but shows a lack of respect for counsel, court process and a lack of court manners.

Perhaps a tactical approach to family law has fallen into disfavour as it requires hard work and an analytical approach to your file. For those of us who love the game of chess (most certainly family law is not a game), a tactical approach is like chess, thinking at least three steps ahead of your opponent. It is understanding the opposite side’s case and the claims made against your client. It requires a plan for your client mapped out ahead of time. It is proactive, not reactive. I would often tell my clients I prefer to serve (tennis analogy, although I am a poor tennis player) rather than receive serve. In our very busy practices, it is often easy to be reactive, but for most clients, that is a poor strategy. Tactical is seeing the forest for the trees, seeing the best possible result for your client early in the dispute. My list above of non-tactical behaviours is not exhaustive nor do I suggest never being guilty of some such conduct in the past. In considering my list above, I consider that many counsel believe that acting in the manner described somehow impresses their clients, opposite counsel or the court. While the former may be true, the latter, in my view, is never the result. Build your family law practice on a tactical approach to files demonstrating respect for clients, counsel and the courts, and you will never regret that choice.

You can read this article directly on Law360.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.