Avoid These Family law Mistakes and act with civility in the family law process. Studies show the greatest predictor of poor financial and psychological outcomes for family law litigants and their children is ongoing high conflict in the separated family. In today’s blog, Robert McQueen explains to clients and family lawyers how to Avoid These Family law Mistakes. Our MacLean Law family and estate litigation lawyers are tenacious and strategic and act at all levels of court across BC and Alberta and in The Supreme Court of Canada on some of the biggest Candian family law cases. Click here to see our 7 office locations across BC and in Calgary.
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“Be kind, be calm, and be safe” Doctor Bonnie Henry’s, British Columbia’s Chief Medical Officer, words to all of us during the Covid-19 pandemic. We are encouraged to look after each to protect all of us from harm. Be kind are words that apply to those practising Family Law. Far too often, parties to family litigation attack each other in the most vicious ways in hopes of gaining an upper hand in the proceeding or winning it all. If represented by counsel their viciousness finds support from those who represent them. To be sure, such practice techniques harm the parties, their children that is not measurable in terms of emotional and mental damage, all the while ignoring the financial cost. Such an approach to the conduct of a family law matter is antithetical to counsel’s oath and duty as an officer of the court.
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Counsel have a duty to act professional under law society rules and codes of professional conduct. Avoid These Family Law Mistakes of thinking your lawyer has to be rude and aggressive to opposing counsel or your ex-spouse. The Supreme Court of Canada in Groia v. Law Society of Upper Canada, [2018] 1 S.C.R. 772 (S.C.C.) stated that;
63 Practicing law with civility brings with it a host of benefits, both personal and to the profession as a whole. Conversely, incivility is damaging to trial fairness and the administration of justice in a number of ways.
64 First, incivility can prejudice a client’s cause. Overly aggressive, sarcastic, or demeaning courtroom language may lead triers of fact, be they judge or jury, to view the lawyer — and therefore the client’s case — unfavourably. Uncivil communications with opposing counsel can cause a breakdown in the relationship, eliminating any prospect of settlement and increasing the client’s legal costs by forcing unnecessary court proceedings to adjudicate disputes that could have been resolved with a simple phone call.
Mr. Justice Marvin Kurz of the Ontario Superior Court of Justice in Alsawwah v. Afifi, 2020 ONSC 2883 set out principles that clients should demand and expect from counsel, themselves, and the opposing side during a family law matter that is before the court. He stated;
104 Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.
105 Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents’ struggle, can leave their field of battle scarred for life.
106 The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.
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107 Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize the truth of Mr. Nizer’s aphorism that began these reasons, all too many, unfortunately, fail to do so.
108 In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:
- Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
- Nor are we swayed by rhetoric against the other party that verges on agitprop.
- Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.
- Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
- Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
- Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
- A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
- Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
- Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
- One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
- While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.
109 None of these comments should be taken as a comment on present counsel. Nor should they be seen to minimize the kind of resolute advocacy that the court has come to expect from so many of its best lawyers. That type of advocacy is often necessary and valued. But even then, rhetorical excess is the enemy of good advocacy.
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