Gary Joseph | Aug 2023

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

-- Spoiler Alert: This short piece will not follow my habit of complaining and criticizing. There is more of that to come soon but for now I want to comment on a case that has been around for some time but should be revisited on a regular basis.

In 2020, Justice David Jarvis published comments worthy of repetition in this era of a paucity of court and judicial resources. Before being ordained (sorry, appointed) Justice Jarvis practised extensively in family law with a downtown Toronto firm. He brought his wealth of practical experience to the bench.

In the case of Ni v. Yan, 2020 ONSC 5941 at paragraphs 8 through 10, Justice Jarvis expresses his frustration (my interpretation) with litigants attending a settlement conference not fully prepared to address settlement on a fully informed and motivated basis. To do otherwise Gary Joseph represents non-compliance with the Family Law Rules and constitutes a waste of the court's valuable time and the clients' resources. I love the so accurate comment of Justice Jarvis that "a settlement conference is not a disclosure dartboard."

So, let's drill down on this continuing phenomenon of court appearances with either (or both) unprepared counsel or files that are not ready for the process before the court that day. I know I promised that this piece would not contain my usual complaining but sorry, sometimes I can't help myself. Too often today counsel appear basically seeking help in managing or resolving their file without the necessary homework done. I see this often in mediations and as noted by Justice Jarvis, in settlement conferences. Please do not think I am preaching from the mountain. Of course, there have been many times when my homework falls short of my lofty words but frankly we simply can't afford this any longer. The courts are overwhelmed, understaffed and underfunded. Clients are stressed by rising prices, rising interest rates and falling values for many of their assets (cottages, shares etc).

Wasted court appearances must be a thing of the past. When your opponent raises legitimate concerns relating to the fact that the file is not ready for the planned appearance whether it be a motion or conference, drop the gunslinger response and consider carefully the merits of the concern. If legitimate, consent to an adjournment request. When the matter comes back after the needed adjournment, make sure that all the preparation has been done so that the court gets the respect it deserves (by a properly prepared file) and the client gets value for his/her money!

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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