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COVID, opportunity and future of family law | Gary Joseph

Wednesday, October 07, 2020 @ 8:45 AM | By Gary Joseph

Gary Joseph %>
Gary Joseph
I have been fortunate to professionally grow up in an era of family law giants. I have negotiated with and against, litigated with and against and learned from the likes of Malcolm Kronby, Alan Poole, Harold Berry, Phil Epstein and many other of the now gone greats. I have spent years attending courts run by Justices Abraham Lieff, George Walsh and Gertrude Speigel, three jurists who stood family law on its head and turned the approach to it 180 degrees. Finally, I have had the privilege of being mentored by one of the great teachers and gentleman of the bar, the late James C. MacDonald.

Now the era of these distinguished lawyers and justices is ending or has already ended. Family law and the practice thereof is changing and facing new challenges. In my view, these are more complex and fraught with obstacles than ever previously imagined. As I near my exit from the family law stage (not quick enough for many of my critics at the bar), I write and wish to ramble on, to once again raise a cry for new ideas and new leadership.

Contrary to the view of many at the bar, the practice of family law calls upon a diverse and eclectic set of skills. A broad knowledge of not only family law but related fields of taxation, corporate law, pension law, and at times criminal law and immigration law is required. A working knowledge of accounting is necessary. Together with these disciplines, the practising family lawyer must have a touch of psychologist, social worker and a larger touch of humanity and empathy for others. The challenge is great but the reward equal to it. There is great satisfaction to be realized in helping others put the pieces of their life, shattered by breakup, back together again.

As noted above, the family law bar now faces unprecedented challenges. COVID has impacted the way we practise, the proliferation of self-represented individuals often places family lawyers in a form of “loyalty conflict” between representation of their own client and fairness to those who chose to be self-represented or those who cannot afford to be represented. Finally, the almost imminent approval of paralegals to begin, in my opinion, practising family law. Let me now unpack each challenge and offer my unsolicited opinions on each.

I have written extensively on the COVID issue. The health and economic fallout are well documented. However, in my view, the courts have reacted magnificently as has the family law bar. We have discovered a new way to practise and as long as we can meet the financial challenges to our practices posed by COVID and the expected downturn in the economy, the clients will, in the long run, be better served. My dear mentor, James MacDonald, preached that the best marketing is a happy client. Once the consuming public realizes the benefits we can offer by reason of the COVID upheaval to our system of service delivery, perhaps the other two challenges of which I will address in a moment will not so seriously impact the practice of family law.

I now, again, wade into the subject that has generated the most hate mail (e-mails mainly) that I have received in over 42 years of practice: self-represented litigants (SRLs). My views are not popular on this subject. Access to justice is essential in our democratic society but an important pillar of that society is justice. When justice loses its esteemed role as not just a dispute resolver but also as the lighthouse shining the light on how future disputes can and will be resolved, our democracy suffers. Lawyers need legal precedent to better advise their clients. Litigation can be avoided by solid legal precedent. Reliable legal precedent can be achieved through a robust examination of facts and the application of the existing law to those facts.

A self-represented individual no matter how smart and no matter how skilled cannot dissect the law and apply it to the facts of his/her case in the manner of a trained lawyer. Judges need the assistance of informed counsel and informed legal argument to shape their opinions. The rules of evidence, honed and evolved over hundreds of years, are important to the fair and orderly disposition of disputes. Lawyers have the training to present in the context of the rules of evidence, self-represented parties do not.

Rather than open our courts up to SRLs the remedy is to (a) increase their access to lawyers (not untrained legal helpers) and (b) better educate them to the benefits of legal counsel. Legal aid needs to be better funded, unbundled services need to be better marketed. Lawyers and judges need to let the public know of the value that trained lawyers bring to the system and to the process. The answer is not to “train” SRLs on how to better present their own cases. Not all self-represented individuals are impecunious individuals. We must get at the root cause of why many who can afford counsel, chose otherwise.

Many of my comments above can be applied to the licensing of paralegals to practise family law. Don’t call it anything else because that is what it is. Forget the academic background necessary to get into law school, forget the three years of dedicated study, the period of articles and the bar admission exams. Forget the years necessary to develop the skills to practise family law. Forget all that because apparently the public and the law society don’t care about that anymore. Don’t accuse me of ignoring the importance of access to justice. I get it. I differ only in the manner to get to that important goal. I applaud the Ontario government’s suggested legislation to simplify the family law process. As an experienced family law appeals counsel, I still have difficulty in navigating the complex appeal rules. Hooray for simplification of that process and the related simplification of the process from first instance. Why? Because that will permit lawyers, trained and experienced in family law, to better deliver services to the public at a more reasonable cost.

Paralegals do indeed have a role in the process as I perceive it. Trained family law paralegals working for and under the supervision of family lawyers can indeed better enable lawyers to deliver services to the public. Not as envisioned, as stand-alone undertrained offices that cannot generally deliver the kind of advocacy and guidance most family law clients need and deserve. Let me also, while I am making enemies, challenge the Law Society of Ontario to review their many regulatory demands that greatly increase the costs of practice. If we are all onboard with the benefits to the public of access to justice, let’s not have family lawyers shoulder all the burden.

Let me close these comments by affirming that I have and I do love the practice of law and in particular the practice of family law. I write only in the hope that those entering the practice or in their early years of practice are permitted to serve the public in a meaningful manner consistent with the incredibly high ideals and standards exhibited by those who came before us. This will only happen if the younger members of the family law bar step up, organize and convince the public that they are better served in the family law process by trained purveyors of the skills necessary.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP, family law practitioners.

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