Best Family Law Courtroom Practices. “Enough is enough.” Our top rated family lawyers know there is a difference between being firm and being uncivil. Clients need to know that winning in court requires finesse and persuasion, not a family counsel who acts like a bull in a china shop who loses credibility in front of judges. So how do we win the cases you read about in the press and cases judges use as precedents? In today’s blog we explain how Best Family Law Courtroom Practices help you succeed. MacLean Law is Canada’s national family law firm with offices across Canada including Vancouver, Calgary and Toronto.
Judges often come up with the best quotes in high conflict cases and here is one we love:
“when a man points a finger at someone else, he should remember that four of his fingers are pointing at
himself.” This aphorism, pointing to the ubiquity of human foible, is one that more
lawyers who pride themselves on their aggressive family law advocacy, should take
to heart. I recommend it in this case.”
Vancouver Best Family Law Courtroom Practices
The COVID-19 (and variant) pandemic has been hard on everyone, especially seniors, the immuno-compromised, and particularly front-line workers. The short and long term effects on health, work and the economy has led to high levels of turmoil, uncertainty and stress in the general community. These effects are also being seen in the legal community, particularly in the family law community. The Courts have started to notice these effects, and they are not amused. Courts demand Best Family Law Courtroom Practices from lawyers an self represented parties.
The Courts have long been accustomed to dealing with uncivil conduct by separating and divorcing spouses (the usual “nonsense”, as indicated by Ontario Supreme Court Justice A. Pazaratz, who set out the original COVID-19 Parenting Protocol in March 2020 – see Ribiero v. Wright, 2020 ONSC 1829), particularly in “high conflict” family law cases. But the Courts are now starting to see similar conduct by Counsel in some cases, specifically in a number of areas, including:
► Brevity – failing to follow Rules of Court and Practice Directives (particularly those imposed to deal with the backlog of cases caused by the temporary closure of the Court due to the COVID-19 pandemic) regarding page and exhibit limits on affidavits;
► Clarity – failing to keep affidavit evidence relevant and factual, without falling into argument, spin and “mud-slinging”, and;
► Civility – failing to ‘turn down the temperature’ on family law allegations and rhetoric.
Nowhere have these concerns and comments been seen more pointedly stated than in a numbers of cases from the Ontario Supreme Court of Justice. One of the first of these cases was Alsawwah v. Afifi (May 8 2020, 2020 ONSC 2883) where, on a motion for exclusive possession of the matrimonial home, the mother’s affidavit referred to the father as ruthless, conniving (twice), malicious (8 times) and cruel (4 times), accusing him of acting in bad faith (6 times) and for hidden motives (4 times). In commenting on the adverse impact of rhetorical excess in family litigation and why it is not acceptable as Best Family Law Courtroom Practices, Justice Kurz stated (at para.’s 103 – 109):
“Having been required by the exigencies of this motion to closely and frequently review the materials filed in this motion, I feel constrained to offer a few words of caution to the parties, their counsel and to the profession as a whole. 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… 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… None of these comments should … 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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In Natale v. Crupi (June 11 2020, 2020 ONSC 3663), on a motion for weekday access exchange, the father filed an 11 page affidavit with 120 pages of exhibits, and the mother a 12 page affidavit with 180 pages of exhibits. Here Justice D.A. Jarvis (noting the previous comment of the Court that the public is “not entitled to unlimited access to trial judges”) refused to hear the motion until the parties had amended their materials to comply with Court directions, stating (at para. 6):
“Neither party’s material complies with the Chief’s Notice and clearly disregards Bennett J.’s direction to be mindful of it… Without understating the matter, the parties’ material is disproportionate to the issue and an abuse of process.”
In Ni v. Yan (October 1 2020, 2020 ONSC 5941), where the parties had failed to comply with the Family Law Rules and practice directions in preparation of a Settlement Case Conference, Justice Jarvis (repeating the comment that the public is “not entitled to unlimited access to trial judges”) cancelled the conference, stating (at para. 8):
“Family law litigants are entitled to one settlement conference unless otherwise permitted by the case management judge. They are expected to come to that conference fully compliant with all the Family Law Rules… To hold a settlement conference otherwise is a complete waste of the court’s valuable time and the parties’ resources.. Non-compliance with the above Rules is evidence of that. None of the Rules is permissive.”
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Finally, in Schieder v. Gajewczyk, on two separate occasions, Justices Jarvis and Himel both had an opportunity to express their frustration regarding the conduct of counsel. On January 19, 2021 (2021 ONSC 640), Justice Jarvis cancelled a motion for spousal support and possession of the family cottage scheduled to proceed before Justice Himel until counsel had revised their supporting affidavits, which substantially exceeded the page and exhibit limits previously ordered by Justice Himel pursuant to the prevailing Notice to the Profession (even suggesting that both counsel should consider adjusting their fees to be charged to their clients for the motion), stating (at para’s 7-9):
“Neither party has sought leave of the court to so grossly disregard not only Himel J.’s Order but also the Notices to the Profession. It is clear that neither counsel has read those Notices and that each has chosen to completely disregard Himel J.’s Order. It was not a suggestion. It is not possible to determine which counsel, or party, has acted most egregiously but it is clear that neither party’s motion should be allowed to proceed on January 20, 2021 unless and until the parties can bring themselves into compliance with Himel J.’s Order and the Practice Direction. In my view, the responsibility for this rests entirely with counsel. They are expected to know the court’s practice, to obey Practice Notices and to ensure that their client’s material is Order-compliant.”
On an urgent (Zoom) Case Conference scheduled for January 25, 2021 (2021 ONSC 635), after noting that neither counsel had provided any explanation or apology for the “gross repudiation” of the filing requirements nor communicated with each other regarding the urgent matters that arose due to the cancellation of the motion by Justice Jarvis, Justice A. Himel took the opportunity to comment on the “culture of unreasonableness that plagues the Court” (including ignoring document formatting and limits, bringing unnecessary “urgent” Applications, or seeking last-minute adjournments, etc.), concluding (at para.’s 12-14):
“It seems that, for some counsel, the days of valuing one’s reputation over success in any particular file may be gone. Given the current state of rapid transformation of the Court, coupled with additional unspecified future changes, that is unfortunate. Civility inside and outside of the courtroom, and respect for colleagues and the Court, are vitally important to the successful functioning of the Family Justice system. Enough is enough.”
So, what is it that is causing this increased lack of civility and failure to follow the procedural rules by so many family law Counsel (particularly in Ontario)? Is it: the impersonality of increasing virtual Court appearances; the increased use of written-only “desk / basket” applications; the remote swearing of supporting affidavits? Maybe.
Justice Kurz commented on the complicated role of the family law lawyer, often involving “a balancing act of duties toward the client, the administration of justice and even the child before the court” (para. 106), and the importance of continued “resolute advocacy” in family law. Clearly there is a continued need for this type of advocacy in our (by definition) adversarial family law litigation process.
But has this gone too far? Perhaps we should all take the advice of Justice Kurz to just ‘turn down the temperature’.
Call our multi-award winning family lawyers today to obtain a winning strategy for resolving your family law case.