Gary Joseph   Nov | 2024

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

I write again about a family law phenomenon: The nasty accusatory letter.

I apologize for repeating myself, but a short time ago‚ I wrote about my concerns with respect to these letters, especially in the context of high-conflict parenting disputes. Obviously, either very few read my articles or‚ more likely, many family lawyers chose to disregard the ramblings of an aging member of the family law bar.

Some clients insist on this type of hyper-aggressive approach to family law. They insist on forcing their lawyer to be a conduit for their hateful messages to their now estranged partner. While‚ of course, we are largely creatures of instructions, there must be a limit to where instructions cross the line and we as counsel must say no. If the client won’t listen, we must suggest new counsel.

To those who continue to write these letters: do you not think that at times they are shared with the children by an angry or hurt parent? Do you not think that by memorializing the alleged bad behaviour of one parent you are creating a narrative that if not shared now may be shared in the future either directly or inadvertently discovered?

Why do some lawyers write these letters as if they were eyewitnesses to the alleged misconduct? Why do they not qualify their accusatory ramblings with “I am advised by my client … ?” Were you there, did you see the “horrible” event recounted in your letter? If not, act like a lawyer, not a participant. Act like a lawyer, not a cheerleader for your client.

Many lawyers want to paper their file and‚ to some extent‚ there is justification as at times a court may ask whether the other side was apprised earlier of the concerns. In some instances, perhaps I should have responded and didn’t. But this does not provide a licence to fire off angry accusatory letter after letter to the point where the conflict boils over and years of unnecessary litigation follow.

“I surrender.” What does this mean? Well, I surrender to the many family lawyers who write better accusatory letters than I do. I surrender to the wave of family lawyers who vent their aggressions through these letters. I will no longer surrender to the urge to respond in kind to these damaging letters. Finally, I will not surrender to trying to move the needle to a more collaborative approach to parenting disputes.

Spoiler alert: This article is one more in a long line of “do as I say and not as I do” (more accurately, as I did) articles. Certainly, I have been guilty of what I now accuse others of. But the combination of experience and wisdom that comes with age has convinced me to urge reform.

Second spoiler alert: I have not abandoned my aggressive approach to legitimate family law disputes. I still will litigate with passion what I see as just causes. I simply refuse now to further contribute to the wave of children damaged by high-conflict litigation. This means calling out those who have not seen the error of their ways. Call me a self-righteous s**t if you must.

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.

Press the button below to read the PDF version, or directly on Law360.