Jun 15, 2020

What it Means to be a Child-Centred Lawyer

Alsawwah v. Afifi, 2020 ONSC 2883 (CanLII)

Although all courts are backlogged during the pandemic, there is probably no more tension right now in our justice system than with family law, especially as parents struggle with social distancing while sorting out the exchange of children.

For some family law litigants, less pressing matters such as obtaining the exclusive possession of a matrimonial home has been pushed through the courts, as in Alsawwah v. Afifi.

Justice Kurz, in granting the motion for exclusive possession to the Respondent, indicated that much of the materials were unnecessary, distracting, and unhelpful to the resolution of the motion. On this basis, he provided some directions, not just to the parties, but to the profession as a whole at para 108:

  1. Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
  2. Nor are we swayed by rhetoric against the other party that verges on agitprop.
  3. Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.
  4. Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
  5. Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
  6. Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
  7. A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
  8. Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
  9. Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
  10. One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
  11. While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.[emphasis added]
Unfortunately for those who litigate family law files, especially in large urban centers, these problems are the norm, and not the exception. Canada has had a no-fault divorce regime since 1985, but despite this allegations of fault permeate nearly every application in family court.

There are a few exceptions, where there is domestic violence or child abuse, where the abbreviated timelines for separation under s. 8(2) of the Divorce Act are warranted. Even in these exceptional cases, as in the one Justice Kutz presided over, the vitriol is entirely unhelpful, and utilize valuable resources. It is far too easy to blame these high levels of conflict on the clients, who are understandably going through their own emotional, social, and financial difficulties.

Instead, lawyers who are representing the parties have to take responsibility for irrelevant and irreverent content in pleadings, motion materials, and letters. By the time a series of acrimonious letters followed by a scathing Application is sent to the other side, any Mandatory Information Program or subsequent mediation attempts are thwarted, if not permanently futile.

Most of these litigants eventually end up self-represented, due to the eventual depletion of their funds, and are then left with a conflict in court that was largely created by the manner in which the conflict was framed at the outset.

Yes, lawyers can be part of the problem. And far too often they are.

Of course calling for this type of responsibility, as I have repeatedly, has earned me numerous threats, insults, and even harassment - from lawyers, who I am not even on a file with. One very senior practitioner publicly called me a "self-hating lawyer." It's not the lawyers that I hate, it's what many lawyers do, contrary to what their professional obligations would require.

This is still a far cry from an allegation of negligence in the conduct of litigation. A family lawyer is required to bring reasonable care, skill and knowledge to the professional services provided, which requires an error or omission that an ordinarily competent family lawyer would not have made.

Justice Fisher noted in Leone v. R. Craig Campbell Law Corp. that errors in judgment will not generally constitute negligence, because competent counsel may conduct a case differently and disagree about matters of judgement.

The responsibility in Alsawwah instead are professional obligations, and are necessary for promoting child-centered decision-making. Justice Kutz elaborated further on these obligations in this case,

1. The famous American trial lawyer, Louis Nizer, once wrote that "[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself." This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart. I recommend it in this case....104. Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict. 105. Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents’ struggle, can leave their field of battle scarred for life. 106. The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court. 107. Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize the truth of Mr. Nizer’s aphorism that began these reasons, all too many, unfortunately, fail to do so.[emphasis added]
The balancing of duties referred to by Justice Kurz in paragraph 106 above are explained by footnote to include the Law Society of Ontario’s Rules of Professional Conduct, as well as the sections in the Family Law Rules referring to the primary objective of of the Rules,

PRIMARY OBJECTIVE

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Justice Kurz also refers to this duty in footnote by referring to the Supreme Court of Canada's decision in Groia v. Law Society of Upper Canada. However, the practical implication of this decision on the regulator is that they are far less likely to discipline someone for conduct that is uncivil, improper, appallingly unrestrained, unprofessional, inappropriate or extreme. It's rather easy to have an "honest but mistaken belief" about the appropriate norms of family law when everyone else is doing it too.

A family law trial is presumably less of a tea party than securities litigation. Joseph Groia himself publicly stated on Sept. 25, 2016 at a bar association meeting that clients should "never" be able complain to the law society about their ex's lawyer. His decision at the SCC practically ensures that these types of complaints would be ineffective.

Instead, the solution must come from the courts, as with this decision by Justice Kurz. But the solution has to come in the form of consequences, and not just juicy decisions that periodically emerge from the bench, denouncing the practices that they observe on a continuous basis.

The duty to promote the primary objective of the courts dealing with family matters justly is also found in the Family Law Rules,

DUTY TO PROMOTE PRIMARY OBJECTIVE

2(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

My interpretation of this rule is that lawyers are required to refuse to introduce extraneous, unnecessary and harmful strategies into family law litigation, even if their clients insist on it, especially once they are able to recognize the detrimental effect it has on their own client's case, and the justice system at large. This includes the use of hyperbolic language and disparaging adjectives in the form of affidavits. If the client refuses to cooperate, the professional obligation is to remove oneself off the record.

In "Ethical Duties of Lawyers for Parents Regarding Children of Clients: Being a Child-Focused Family Lawyer," Nicholas Bala, Patricia Hebert & Rachel Birnbaum distinguish the role the family lawyer plays from the "actively partisan" role that lawyers play in other contexts,

Family lawyers have a unique responsibility in working with clients as they navigate one of the most stressful, complex, and challenging periods in their lives. Clients will share the most intimate details of their lives with their family lawyers, and many rely on their lawyers for guidance as they reshape their lives...
An adversarial family dispute increases the risk of emotional harm to the children from parental separation. When the legal process is over, the ability of the parents to work together constructively and to allow their children to have a secure and loving relationship with both parents is very important for the children’s well-being and resilience.
Actions and advice by counsel that support this result are constructive, while actions or advice of counsel that undermine the relationship of the parents with each other are likely to harm the children...
Rather than being “resolute advocates” for the objectives that their clients may initially want to achieve, a counseling, problem-solving approach to the role of lawyer is usually a better model for family lawyers to adopt to help their clients resolving difficult issues and conflicts, and for advancing the long-term interests of their clients, as the welfare of their children is a prime concern for family clients.
The only way that the courts can ensure this primary objective is achieved is by ordering costs against a lawyer personally. I have now sought this relief from the courts in several cases, with mixed success. They're usually accompanied by the types of behaviour indicated above, from colleagues of those same lawyers. But the end result is that the lawyer's conduct changes, ever so slightly.

Seeking costs personally won't help any lawyer win any popularity contests, but the public already perceives the bar as protecting ourselves unreasonably, even when the advice or conduct fall well below professional standards.

That also has to change. It's what it means to be a lawyer, and a champion of justice. It's what is expected of us to do this very difficult work, especially if we claim for it to actually be child-centered. It's what is needed for our courts to focus their time and energy on the cases that actually need it, and in they ways they need it most.