Gary Joseph | Oct 2022

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

It was late Friday afternoon and rather than feeling excited for the weekend, I was feeling deflated and angry after receiving a nasty letter from opposing counsel on a high conflict parenting file.

Relationships do break up and children are very often caught in the crossfire of allegations and claims both real and false. When I began practice (a long, long time ago, as my partner William Abbot often reminds me), we only had a court process to resolve these matters. Today of course we have broad range of possibilities for resolution without court process. Mediation collaborative law and parenting co-ordination are but a few of the choices designed to assist in avoiding ugly court battles. Nevertheless, many cases resist all efforts to resolve and are left only with litigation as a forum for resolution. Parties lawyer up and if resolution cannot be found within the court process, trials proceed. I am often part of the lawyering-up process and have fought many these battles on behalf of clients.

What then has caused this poor boy (me) to feel deflated and angry? I bemoan the fact that there is still family law counsel who (a) personalize these disputes to the point where I have to remind myself that the layer is not the aggrieved client and (b) insist on every opportunity to demonize the opposite party in long rambling letters deliberately sent on a Friday afternoon to ruin the opposite party’s weekend.

I often wonder whether the lawyer who personalizes the file is really acting out certain rage or emotional discord in his/her life through the breakup of a client’s life. I often wonder whether the extreme animus expressed in such correspondence is the literary venom of the lawyer rather than the client and whether the strategy of late Friday delivery of such is the lawyer’s idea rather than that of the client. In either case, this is not what we family lawyers should be doing nor is it a healthy expression of our professional responsibilities.

I wish I could reproduce this Friday letter received from opposing counsel. I wish I could convince my opposite counsel on this horribly ugly file to rein in the rhetoric and remember that the dispute is that of the clients, not counsel. I wish I could remind my opposite counsel of our responsibility as family lawyers. My late dear mentor, friend and partner James C. Macdonald, would often remind us that we are family lawyers, and we must always be mindful of our impact on the children and on the family as a whole. I wish Jim were here to speak in his soft and convincing manner to my opposite counsel.

Some of you may consider this rather rich coming from someone who has over the years litigated some of the most horrific custody trials. Perhaps there is some validity to your concern for my sincerity in drafting this piece. However, I remind you that most (not all) generals who have seen battle hate war. I have seen matrimonial battles in the extreme and when it involves children, I hate it. I constantly remind myself not to personalize the dispute and try my best to avoid the writing of letters of the kind I speak of above.

If you are not convinced, then I remind you of my previous writings wherein I spoke of my late mother with a cigarette in her mouth admonishing her children to never smoke. None of her four children ever did. Do as I say not as I (might) do. Don’t personalize and don’t drop letter bombs on the opposite side late Friday afternoon designed only to upset and ruin the weekend for the recipient client. We must be better than that.

Gary S. Joseph is the managing partner at 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 of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law.

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