Gary Joseph | June 2023

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

Recently a number of young family lawyers have written and published views relating to the role of the family lawyer in the justice world. These articles suggest that skills relating to negotiation and keeping matters out of court now are more important than advocacy skills and court presence. Wow! What an innovative and forward thinking view. Not!



I write to advise these young lawyers that for decades now even those of us who dare to pride ourselves on our court skills settle the vast majority of files without the need to litigate. However, what these young and largely inexperienced family lawyers neglect is the fact that many of the skills necessary to settle cases without a court appearance were developed in court as family law litigators.

Let me expand upon this view. In order to properly and effectively litigate family law matters one must have an in-depth understanding of the jurisprudence that governs. How can you settle a matter if you are not immediately knowledgeable of the latest Court of Appeal decisions on a particularly important aspect of your case? Let me go further on this subject. Family law litigators must have an intricate knowledge of the law of evidence. Oh, you think that you don't need this to settle cases? Wrong. How can you properly assess and advise a client as to whether, for example, the "evidence" that they have to prove a claim for excluded property on an equalization dispute would be admissible in evidence, if necessary, if you don't understand the rules of evidence? Answer: You cannot.

I already know the push back to all this. You don't need to go to court, you don't need to litigate to have the above-noted knowledge. True enough, but litigating cases, arguing fine points in the Court of Appeal or at trial forces you to have a pinpoint and immediate working knowledge of these matters. OMG, now I am going to use words that perhaps shouldn't be spoken. Being "battle tested" in trial or in the Court of Appeal forces you to read the cases, to understand them, to apply the rules of evidence and know how they apply to your case.

"Battle tested!" Please don't cancel me for using this term.

Can I please be perfectly honest? Most family law cases should settle and do settle. Sorry young family lawyers, I do still settle well over 90 per cent of my cases but those that don't settle, I can and do litigate and/or appeal them. You need these litigation skills. My late and great mentor James C. MacDonald settled almost all his cases without litigation but when he retired he told me with conviction that I never should abandon my trial skills. He simply said that his litigation skills were essential to his success in settling cases. He cautioned that my skills in that realm should not be ignored, nor should I permit the importance of them to be diminished.

I am sorry (again ... OMG, I sound like our Prime Minister apologizing all the time). Perhaps you can tell I have written this article with just a little bit of anger. Correct. Also, perhaps, I have written with a lack of modesty. Please excuse me, I am indeed most of the time a humble person. However, I am tired of those who can't do criticizing those of us who can do. I close with my usual refrain. I am close to leaving the family law stage. I miss many of my colleagues who have already left: Pat Schmidt (the best family law litigator ever in my view), Phil Epstein, Stephen Grant and, of course, Jim MacDonald. Those lawyers settled most of their cases but were skillful litigators and appeal advocates who used those skills to help them settle.

Please, young inexperienced family lawyers, go to court once in a while, learn the rules of evidence and improve your advocacy skills while on your feet. Trust me, it will help you settle cases.

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 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.

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