Gary Joseph | Sept 2023

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

Recently I argued a difficult long motion wherein the opposite side used three cases in the Court of Appeal against my argument. Interesting, all three involved appeals that I had argued and lost! No busy family lawyer likes to admit to losses in any court, but this was particularly embarrassing as the only three cases he relied upon were my losses. I would like to suggest that those three cases are the only cases I have ever lost in the Court of Appeal, but the truth is there have more (actually four in total ... lol).

After court I had coffee with opposing counsel (I drink tea not coffee consistent with my British background). We had a wide-ranging discussion of our case (very interesting issues) and the law in  general. He then paid me a wonderful compliment. With no sarcasm stated or meant he thanked me for bringing forward those issues to the Court of Appeal so that the issues involved could be considered and ruled upon by our appeal justices. He bemoaned the fact that too few counsels today are willing to argue

difficult and challenging legal issues and commented that the entire basis of our common law is at risk by reason of the absence of this type of advocacy, Wow, he pumped up my ego tremendously (something terribly in need of same ... not).

Later in the day I reflected on this discussion with one of my colleagues, and she too agreed that we should, and we must continue to take on difficult and sometimes unpopular cases to advance issues that need to be considered and to challenge decisions that require same. Our courts are often the willing and sometimes unwilling dumpsite (no disrespect meant) for issues our politicians are too fearful to take on. Whether one agrees with an activist court or not (I don't) the reality is as described above, and this necessitates counsel who can and are willing to take on the challenge of these cases from both sides of the argument.

Recent developments on the free speech issue and professional disciplinary proceedings arising from the Jordan Peterson case must not discourage counsel from pleading cases effectively whether from the politically acceptable side or otherwise. Effective advocacy will and must always have a place in our community and counsel should not shy away from the challenges of advocating an unpopular position. The rigours of debate help to shape and define our thinking on important legal and social issues, many of which arise in the family law world. Counsel should view the opportunity to participate in these legal debates as a privilege ... I do.

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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