Family Law is a unique area of the law. It often receives a less than stellar reputation, not just amongst the populace, but amongst other lawyers who do not practice family law. Often this comes from a misunderstanding of what Family Law is actually about. Many people who are not familiar with Family Law often view it as arguing about barbeques and silverware and who gets to keep the cat. However, when people become engaged in Family Law, it is quite quickly that they realize the level of complexity and breadth of knowledge that is involved in the practice of Family Law. Because of the nature of the disputes in Family Law and the variety of issues that can arise in any breakdown of a relationship, Family Law lawyers are responsible for being skilled in a number of different areas of law including parenting, tax, property, jurisdictional disputes, spousal support, child support, child welfare, injunctive relief relating to property, and protection and restraining orders, to name a few. Within this, Family Law lawyers must be skilled in their understanding of different asset and investment categories and the tax treatment of such, child development and the numerous theories relating to child and relationship development, the dynamics of domestic violence, basic accounting principles, and even some corporate law.
While Family Law requires lawyers with well rounded skill-sets and a broad competency in a number of different areas of the law, because of the particular circumstances of Family Law in which the interpersonal and emotional relationships of the parties underlie the issues between the parties, Family Law lawyers also need interpersonal skills, deep empathy and understanding of the impact of loss on our clients, and resiliency in order to be effective and bring a humanistic aspect to helping our clients in very difficult personal circumstances. Most importantly, Family Law lawyers must be skilled in client management and acutely aware of their role in counselling their client, and not simply following instructions blindly. For this reason, it is important that a Family Law lawyer is proficient in the issues that arise on both a legal and personal level.
Notwithstanding this, however, Family Law does sometimes get a bad reputation for other reasons. It may be that this arises because of the particular emotional stresses that come along with Family Law matters. When clients are emotional and view the conflict through a lens of emotion, sometimes their lawyers will also act from a place of emotion, as opposed to logic. Additionally, it does not require that both parties act in such inappropriate ways; all it takes is one party to engage in needless or pointless litigation, or to approach matters with incivility to drag both parties and their matter into a state of never ending conflict and wasted legal fees.
This is no secret, and the Courts and the Law Society of Alberta have both addressed this. Most recently, in the case of Rowan v Price, 2018 ABQB 1060 the Court of Queen’s Bench dealt with what appear to have been needless applications. In this matter, it appears that the parties were engage in litigation of a complex matter involving personal, corporate, and real property. The Court remarked that on the last hearing date, the Husband conceded the validity of a post-nuptial agreement and the division of personal property therein, whereas the Wife had advised the Court of her desire to have the title to the matrimonial home free of encumbrances in order to sell it. However, in spite of this, the Husband opposed an application of the Wife to have her personal property returned to her notwithstanding that he had agreed to the validity of an agreement that stipulated her ownership of such property. Further, the Husband also opposed the Wife possessing a key to the matrimonial home despite her being a joint owner of the property. The Wife on the other hand, notwithstanding her communication to the Court regarding her desire to have the matrimonial home free of encumbrances, proceeded to encumber title to the house with a caveat on the property.
While the decision in this matter does not disclosure the full history of the matter and the litigation, the Court felt enough displeasure with the actions of the parties that it felt it necessary to conclude its decision with a specific message to the parties and their counsel, that:
- The Court relies on counsel to take positions that are rational and consistent; and
- That family litigation should not be a blood sport.
In this regard, the comments of the Court direct attention to the applications of the parties themselves, and upon review of what the parties were seeking and the actions they took, the question does arise: What purpose did the applications serve? It is always critical that any step in any litigation, but particularly in Family Litigation must further some legitimate purpose and the litigation itself. This has also been remarked upon in the context of Family Law wherein the Courts have variously commented:
- “… high conflict family law litigants overtaking our courts with numerous and endless applications, all the while using their children as the spoils in their litigation war.” Stanners v Alexandre, 2014 ABQB 253
- ” While there truly is a legitimate social concern about the lack of access to justice, it appears that in some family lawcontexts, the problem is access to too much justice. In other words, parties continue to bring applications and continue the litigation war, all too often on an “interim basis” with no final resolution in sight. All the while, their children are witnesses to this ongoing family feud.” Stanners v Alexandre, 2014 ABQB 253
- ” It is an obvious frustration for the courts to be in situations where games are being played, large amounts of valuable court time and resources are being consumed, and few effective remedies are granted. It is also frustrating for the litigants on the other side (and their lawyers) to see the system being abused in this fashion, and the court appearing toothless and powerless.” CJD v RIJ, 2018 ABQB 287
- “…litigants unsatisfied with chambers decisions will return again and again for variation on the thin excuse of a change in circumstances. This practice has to stop. Our system cannot continue to throw resources at family law litigation without regard to the costs and without regard to the needs of the other users of the justice system. In my view, anecdotal evidence supports the conclusion that 50% of a Judge’s average working day is taken up with family law In my view, although I am but one voice, when it comes to the area of family lawlitigation, the problem is not lack of access to justice, the problem is over access.” Kriaski v Kriaski, 2015 ABQB 730
When the Courts themselves consistently remark upon needless applications and over-access or wasting Court resources in the context of family law, it is not difficult to understand why the area of Family Law has developed a dimmer reputation amongst the public, and even other lawyers in different areas. This is compounded further when practitioners of Family Law engage in unprofessional behaviour in the nature of incivility or unprofessional communication. In statistics gathered by the Law Society of Upper Canada (now the Law Society of Ontario), it was found that the vast majority of complaints about the incivility of counsel were in respect of Family Law lawyers. The Law Society of Alberta has also remarked upon this issue in the realm of Family Law, recognizing that it is a high-emotion and tense area of law, even in the absence of incivility. In a hearing in which a senior Family Law lawyer was sanctioned for “discourtesy”, the Law Society of Alberta in Law Society of Alberta v. Forsyth-Nicholson, 2013 ABLS 24 held that, “Trained counsel have to be willing to participate in a specialty of law to provide advice to litigants. It can only have a chilling effect on the availability of counsel to know that in this already potentially emotionally difficult area of law (family law) that there are senior counsel willing to “wind up” a case with personal attacks.” The lawyer in question attracted significant sanctions as a result of that lawyer having previously been subject to sanctions for similar issues. And while, at first glance, it might be considered that personal attacks are more an issue between lawyers to resolve, the reality is that as lawyers, we have an obligation to provide our clients with all communications received from the opposing counsel. If one counsel relies upon emotional rhetoric and histrionic language in their communications, that potentially impacts the ability of the parties to move a matter forward as the party receiving that communication may assume that the tone communicated by the opposing lawyer is representative of the feelings of their client, even in circumstances where it may not be. In this regard, the actions and conduct of the lawyer can directly impact tenor of the conflict between the parties and unintentionally create conflict that might not have otherwise existed.
The above are all issues that can impact a litigant’s experience in the Family Law system. It is never easy for people to engage in family litigation, but it becomes even more difficult, expensive, and emotionally disruptive when litigants are exposed to such added difficulties in the system as marked above. This is why we provide all our clients with this information at our first meeting. At Mincher Koeman LLP, we believe that treating Family Law as a blood sport, or engaging in personal attacks with opposing counsel or parties only damages the interests of both parties. Litigation is never easy, but it doesn’t have to be war or engage in scorched earth tactics. We will advocate for you, but we will always do so in a smart, economical, and respectful manner, ensuring that you are aware of your rights, but more importantly, that you are not clouded by emotion. If you have a Family Law matter that you need assistance with, give us a call at (403) 910-3000 or email us at firstname.lastname@example.org.