Gary Joseph | May 2024

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

I had the pleasure of attending the Spring Family Law Dinner organized by the York Region Law Association on May 6. Many distinguished speakers presented throughout the evening, but I was particularly struck by the passionate words of Justice Richard Bennett (Ontario Superior Court of Justice). Justice Bennett bemoaned what he sees (from the bench) as a growing lack of respect in his courtroom and otherwise in the profession. His words struck
a deep chord within me, leading to this article.

Political and social discourse surrounds us, and in this tenuous era, I believe that more than ever our democratic institutions must be cherished. I make no apologies for my deep sense of pride in being a lawyer and participating in the justice system, an essential element of our society. While not perfect, the justice system is a pillar upon which the rule of law governs us. It must be protected, nourished and improved where necessary, but at all times, it must be respected, especially by those of us who serve within it. The current lack of respect in his courtroom so eloquently focused upon by Justice Bennett is but a microcosm of what I observe in the trenches of family law. When counsel show disrespect to each other, disrespect the court and disrespect rulings of the court, they undermine the essential role of the justice system. When clients observe counsel showing disrespect, what are they to think? What are they to feel when those within the system do not honour it and show deference to its process and its rulings?

Please do not misunderstand my views. There is enormous room for improvement within the system, but as with many trends in our world, you should not tear down with no plan to rebuild or improve. Justice Bennett made a point last night that, I believe, all counsel should be reminded of; Justice Bennett does not ask that the respect he seeks is personal to him but is to the system, the court and the institution. A perfect capture of the heart of the issue here. Counsel, regardless of the conflict between the clients, regardless of personal views of the Justice or their rulings, must see the vital essence of the need to buttress, not tear down, a system that has served us well for over a century. A system that has roots in a common law system with many centuries of vital service to democracy, flowing from its roots in the United Kingdom, should be preserved.

What can we, as family lawyers “toiling in the fields of matrimonial discourse,” do to better serve this system? I, again, (sorry) return to my plea for better civility among counsel; the fight is the clients’ not their counsel. We are officers of the court, and the court is fully entitled to and must be shown respect by counsel as a clear message to our clients, the public, that it is worthy of that respect. Anything less is a shame on counsel and must not be tolerated by the court. It must not be tolerated by other counsel. Last night, at the dinner, a number of lawyers suggested to me that my writings are too focused on the past. Perhaps, but where the past shows a better way forward, why not harken back to it?

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.

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