Gary Joseph | Feb 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

This is a continuation of my series of articles that I earlier classified as “do as I say not as I do.” I wish I could classify them as “do as I do” but the sad reality is that is not the case.

In a recent endorsement on one of my files a justice of the Superior Court commented on the “strained relationship” between counsel. While that strained relationship is quite obviously the sole fault of opposing counsel (NOT), it is a judicial comment I regret. It is a comment that reinvigorates me to avoid any and all strained relationships with counsel. As I remind the many associates in our firm and now remind myself once again, the dispute is that of the clients not counsel. We better serve our clients by never allowing the ill feelings that may exist between the clients to spillover to the dealings between counsel.

To be frank some counsel are unnecessarily difficult, and often we feel compelled to respond in kind. There is also, of course, the client pressure to “be tough,” to be their “soldier” in the battlefield of matrimonial conflict. Obviously, this is a mistake. Our role is to avoid conflict and move to resolution wherever possible. That does not mean to capitulate to unreasonable positions. It means to seek compromise where appropriate and to always remember that we are “family lawyers” and the family unit while presently asunder must be respected.

In the very famous writings of General Sun Tzu, The Art of War, it is written that the ultimate achievement is to defeat the enemy without even coming to battle. Put in simpler terms, the best battle is the battle never fought. This to me, after long years of engaging in matrimonial battle (I have the “bruises” to prove it), is the ultimate wisdom to be applied in family law matters.

The Rules of Professional Conduct (Law Society of Ontario) contain, inter alia, a code for how we as counsel deal with each other. Beyond the broad requirements of courtesy, civility and good faith, Rule7.2.1.1 requires that we agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities and similar matters that do not prejudice the rights of the client. It is here that family law counsel can make great strides in creating an atmosphere of goodwill and co-operation. Of course, where client rights may be prejudiced we cannot and must not agree but where not, consents to reasonable requests are essential. An agreement to a brief adjournment or a consent to late file goes a long way to encouraging co-operation between counsel to the benefit of the client(s).

Working together with opposite counsel for the betterment of the family is not a dereliction of your duty to the client. Judgment is an essential tool of good lawyering. Pick your battles wisely and avoid them when you can. Sun Tzu wrote this over 2,500 years ago, and it remains a useful guiding principle for we family lawyers.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

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