Gary Joseph | Feb 2022

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

I was one of Zoran Fotak’s counsel (Capone v. Fotak 2021 ONSC 7992), accepting a retainer after the 10 court orders referred to in Nathalie Boutet’s article (Case a wakeup call in dealing with difficult clients) published Feb. 9. I know Nathalie and have enormous respect for her as a lawyer and ADR practitioner but her views as published added to my long list of concerns about the current practice  of law and in particular the practice of family law.

Let me first note that the arrival of ADR in family law is a long overdue addition to the toolbox of approaches to resolving family law disputes. Often (not always) it brings to an end high conflict matters. Compromise and efficiency save time and expense for families caught in the vortex of marital breakdown.

My late and great former senior partner James C. MacDonald was an innovator in bringing to Ontario alternative methods for resolving family law disputes, but he also was a strong believer in the need for courageous representation and the development of legal precedent. Under his mentorship (for which I am forever grateful) he encouraged me to take on challenging matters, to push the bounds of legal precedent and to not shy away from difficult clients if justice demanded representation. The facts summarized by Ms. Boutet are incomplete and leave the reader unaware of the significant legal issues (not to mention disputed factual matters) raised in the Fotak case.

Fotak raised jurisdictional concerns relating to matters under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters . There were also serious issues relating to a stay of proceedings and claimed credits against arrears. Ultimately, he was unsuccessful and Justice Sharon Shore, who heard the stay motion, wrote 13 pages exploring the factual and legal issues. She determined the service issue on a factual basis and dismissed the request for a stay. That does not mean that the issues raised were not serious and legally challenging. The dismissal of the motion does not mean that it should not have been brought. Nor, of course, was Ms. Boutet privy to discussions between the client and two (not one) senior counsel acting for him leading up to the motion.

Ms. Boutet raises important issues in her piece but, with respect, to have omitted the core of the dispute and use only part of the decision as the foundation of her thesis is wrong. Further and just as worthy of comment is the message sent to family law counsel. Yes, I 100 per cent support ADR and meaningful efforts to calm and resolve family law matters. But I also recognize the need for counsel to take on unpopular cases where important legal issues arise or where a perceived injustice may exist.

Precedent and common law decisions are the foundation upon which considered advice is given by experienced counsel. Without the evolution of the law through well argued and thoughtful presentations to our courts of challenging issues, it will become stale and unable to meet the changing times. Family law counsel need precedent and sometimes that requires unpopular cases to be argued.

Of course, we are bound by our duties under the Rules of Professional Conduct, and we are morally obligated to do all we can to resolve family law disputes outside of courts. I say also though that we are bound to be critical thinkers, brave counsel and advocates for justice. Think about the social and legal changes that have arisen from counsel willing to take on unpopular clients or highly contentious legal issues (gay marriage, abortion are but two that quickly come to mind) to court.

Family law counsel must step up to the plate at times even if the cause is unpopular, the client difficult or the facts concerning.

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