Gary Joseph | Oct 2023

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

I read this case recently, Bron v. Thompson, 2022 ONSC 5674, wherein counsel for the respondent received a stinging reprimand from the presiding justice for breaches of the practice direction relating to page limits, attachments and spacing together with attempts to file beyond the  court's timelines. These actions were described as "bad practice" by the presiding justice and who could argue with this description.

But as dedicated family lawyers, should we leave it at that? Those who know me well or who read my rantings know that it is simply not possible for me to "leave it at that." I may now venture into dangerous space but here goes ...

With absolutely no disrespect meant to the presiding justice in the Bron case nor to the bench in general, I am growing tired of the blame for the problems in the court system being constantly downloaded to counsel. Yes, there are bad counsel and yes practice directions are not, as stated in Bron by the justice, suggestions," (a borrowed phrase from a very well-known case relating to compliance with court orders) but can we not somehow share some of the blame for problems and delays in the court system? Let me begin:

1. Judges: yes, we desperately need more and delays in appointments cannot be tolerated.

2. Family court: we must have a Unified Family Court system provincewide. Where have our past crusaders for this gone? Perhaps I am now out of the loop and the lobbying continues but to me the issue has gone cold and silent.

3. Practice directions: With technology, the province has grown smaller. Family lawyers can practise in many regions not just their home base. As Toronto counsel in our firm, we attend all the Greater Toronto Area (GTA) courts and some outside the GTA. Obviously to practise in multiple regions one needs to know the local practice and the local practice directions. But should we not try to standardize practice directions such that as near as possible there should be uniformity throughout our family courts? Would that not help reduce the problems faced in Bron and other cases and reduce costs incurred for unnecessary refiling and reattendance? Do we not want to do everything possible to reduce the costs of litigation? I suggest standardized practice directions would assist.

4. Court office staff: In my experience these employees are generally underpaid and overworked but in fairness there are many who are simply undertrained. Our senior clerks at our office are often left in fits of frustration by court staff who do not seem to fully understand the process and the importance of co-operating in the interests of the client rather than simply dressing down hard-working clerks.

I have great respect and sympathy for family law judges who daily must endure listening to tales of woe and suffering often pitched to them by either self-represented litigants or poor and/or underprepared counsel.  However, these judges applied for the job. They wanted positions on the bench and for the most part they reserved appointment. If they are overworked or understaffed, they must find remedies for that within their bailiwick. They must realize and/or not forget that the practice of family law is an extremely difficult practice area. Many lawyers appearing before them do not have the luxury and privilege of a practice such as mine (fully staffed with many skilled associates and clerks, plus great knowledgeable partners). Many are sole practitioners sincerely trying to do their best for the client, often dealing with difficult clients and difficult situations.

Dressing down a lawyer should be well down the list of duties of a presiding judge, and that judge should be cognizant of the repercussions of same. Again, I do not countenance bad practice but let's not forget that we are a team. Yes, a team. The judge, the court staff, the lawyers - we are all there to serve the clients, who in family law, are experiencing a horrible life event. Rather that blaming, we should be finding ways to support each other as members of a team. If there are problems, let's fix  the problems together rather than blaming.

Judges are entitled to respect for the job they do. Court staff are entitled to respect for the job they do. But so too are lawyers who for the most part are doing the best they can, often in difficult circumstances. My experience over the past 46 years is that the family law bar is made up of outstanding hard-working individuals who have been, for too long, subjected to blame from the bench, the court staff and the clients.

No one appointed me to speak up, I simply can't help myself.

Gary S. Joseph is counsel to the firm of 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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