Gary Joseph Apr | 2025
This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.
Some of you (or maybe more of you than I think) must be tiring of my writings on the issue of civility. I understand, but the longer I practise, the more I see the importance of civility in our family law practice. Today I wish to reach a
little further into this aspect of practice, go somewhat granular, and link civility with the issue of mental health.
It must be obvious to all that mental health issues are increasing almost exponentially in our society. Is it a question of more disclosure and reporting of the problem, or is it the pressures of modern society actually increasing the incidence of mental illness? I do not know, nor do I have the expertise to opine on that issue. What I do know is that I see evidence in my practice and among my clients and colleagues of more mental health issues.
So, what is the linkage between civility and mental health issues in the profession? I believe we can and should recognize the enormous stress that is part of the practice of family law. In the past I have written about my personal “hierarchy of blame” in family law. The parties begin with blaming each other, followed by blaming the other party, then they blame the judge, and then — wait for it, you know where this is going — yes, they blame their own lawyer! This I believe to be true both through personal experience and through multiple discussions with other family lawyers.
The blaming aspect of family law can and often does create stress and anxiety for counsel. Extreme anxiety is a form of mental illness, and continued extreme anxiety can lead to even more serious mental health problems. What then can we do as counsel to alleviate this problem? The answer of course is simple:
1. We can treat opposing counsel with respect and civility.
2. We can constantly remind ourselves that the dispute is between the clients and is owned by them, not counsel.
3. We can insist that our clients treat the other lawyer with respect and try our very best to treat the other party with respect (here I again acknowledge past personal failure on this aspect, and perhaps even the preceding thought relating to treatment of opposing counsel).
4. We must lead by example, insist that court orders are respected and that the court (and staff) is treated in that manner, too.
5. We must not aid and abet frivolous LSO complaints by our clients against opposite counsel.
6. We must be sensitive to the effect of our actions on the opposite party, opposite counsel and, as my mentor James C. Macdonald insisted, sensitive to the effect of our actions on the family. He would often say: “We are family lawyers. Remember that!”
Some concluding thoughts: this article should be grouped with my long line of “do as I say, not as I do (did)” writings. Yes, again, I am a slow learner, but on this I have now “got it.” I am like a reformed addict (perhaps not quite). Civility in practice is essential. Mental illness is a scourge in our community. Let’s do what we can to alleviate it in our profession. Let’s all get onboard.
Final note: Some of my older colleagues at the bar have suggested to me or, yes, behind my back, that my writings reflect that I am getting soft in my old age. Not so. I still believe in and often adopt, in appropriate cases, a vigorous (some may say aggressive) litigation approach, but this is not antithetical to practising with civility. It is not! Those who think so are dinosaurs and should retire. I am not a dinosaur and not about to retire (another ugly rumour circulated by some behind my back). My late dear father used to tell me to “be the best I can be.” I still strive for that, and the adoption of civility in practice does indeed make me better. I am not yet the “best I can be” as a family lawyer. Perhaps another 10 years of trying.
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.
You can read this article directly on Law360.
