In the case of Comeau v. Fox, 2025 ONSC 4318 (CanLII), Justice Alex Pazaratz did not mince words about lawyers who do not go on the record in a court matter:
“[T]his case highlights a serious and increasing problem family court is experiencing with lawyers who are sometimes coy or inconsistent about the extent to which they are assuming responsibility for a file. The Law Society now permits “unbundled services…Usually, clients hire lawyers on a limited scope basis in order to limit legal fees. And sometimes it’s better to have a lawyer present – even as an “agent” – rather than have a litigant appear in court on their own. But appearing as “agent only” seems to be a new business model in the legal world. Some notable law firms never seem to go on record. They just have a roster of young, less experienced lawyers who only appear as agents. Sometimes you get the same agent twice in a row. Sometimes you get a different agent who doesn’t know much about what happened during the last court attendance. Sometimes an agent will make promises about things they’re going to do – and then they disappear from the file. Sometimes the agent will insist on a particular return date – and then the agent won’t show up on their requested date because they’re not on record. From the client’s perspective, repetitive use of “agents” for individual court events tends to promote a piecemeal approach to the issues, rather than the preferred holistic approach which counsel of record can better address. For the opposing party – and for the court – it’s difficult to organize or advance the matter, when the agent-of-the-day makes it clear that they assume no responsibility for either past or future developments on the file.
Perpetual agents are a problem, because they’re unaccountable…I know it’s tough to be a lawyer. These days it’s tough to be a judge too. But we’re not here to make our professional lives easier. We’ve chosen these jobs to help litigants, families, and especially children. If a lawyer doesn’t want to represent a client, then don’t go on the record. Or make it clear that you’re only appearing as agent. And if you’re on the record and want off, do it properly and in a timely way (ie. not on the eve of trial).”
I must admit, I do not necessarily agree with Justice Pazaratz*.
There are some notable differences between the demanding roles of a family law lawyer and a family law judge.
Firstly, the federal government guarantees judges a salary of $338,000 per year with a healthy pension plan – and with no overhead. Lawyers have no such financial security or support. If a client stops paying their lawyer, should the lawyer be mandated to work for free until the end of a case because it is better for the judge?
Secondly, judges do not need to expend hundreds of hours, including weekends and evenings, to draft court documents, meet demanding filing deadlines and be bombarded with demands and complaints from clients, opposing counsel and judges. Although public criticism of a judge is prohibited, disgruntled clients may freely destroy a lawyer’s reputation by posting defamatory online reviews. Should it not be the lawyer’s freedom to accept a case or limit their involvement?
Thirdly, the only occupation in Canada that requires a court order to terminate a professional relationship is a lawyer. Doctors, dentists, accountants, engineers, pharmacists, financial advisers, social workers, therapists, mediators, arbitrators and parenting coordinators have the unfettered freedom to end a professional relationship with a client, often without a legal requirement to provide reasons. But a lawyer who has been mistreated by a client, who has not been paid, whose client refuses to listen to their advice or who is causing them undue stress requires a hearing date, the drafting of motion material, then serving and filing it, then appearing in court before a judge to ask for permission to resign, while potentially being challenged by the disgruntled client. All that work to be removed as solicitor of record is performed with no compensation. Then the outcome is in the hands of a judge who may refuse and force the lawyer to continue representing the client. If the next court date is soon, the judge is likely to force the lawyer to stay on and work for free, for a client who is ungrateful, critical and miserable.
Fourthly, it is nearly impossible to know everything that may occur in a court case when it begins. So to say “if a lawyer doesn’t want to represent a client, then don’t go on the record” is not fair. Some cases settle early, some ebb and flow through incessant motions and conferences, and some go to a lengthy trial. Some cases involve combative lawyers. Some clients constantly change instructions and take extreme positions. To have to set out all these particulars in a sworn affidavit for the purposes of obtaining a judge’s approval to be removed from the record is onerous, costly and exhausting.
Fifthly, a lawyer’s comfort with a case, or client, or opposing counsel, or their competence given the case’s evolving complexity, or the lawyer’s capacity to manage a case in light of other court cases or personal obligations is not a matter for public or judicial scrutiny without causing shame and embarrassment. The same is not required by the others – client, judge or expert.
The practice of law has radically changed since the original court rule was created regarding the obligation of “the solicitor of record”. The demands of practising law, the never-ending changes in the rules of court and practice directions (eg. page limits, fonts, spacing etc.), the volume of documentation needed for every court case, the heightened level of conflict between litigants and between lawyers, the growing frustration by clients with the legal system and its horrible backlog (with cases taking years to wrap up while families are in a state of anxious suspense), the revolving door of judges on any one case with different judicial views offered from conference to motion to trial, the mosaic of hearing types (in-person or virtual that sometimes is changed last minute), the unpredictability of whether the assigned judge has any professional background in the area of law involved, the guess-work involved as to whether the judge has read the material that the client and lawyer spent many hours working on at a huge cost to the client, the threat of having a lawyer’s bills assessed, etc. are just a few harsh realities faced by lawyers in the current practice of law which influence the choice to not go on the record.
So when I read an Endorsement that says:
“I know it’s tough to be a lawyer. These days it’s tough to be a judge too. But we’re not here to make our professional lives easier. We’ve chosen these jobs to help litigants, families, and especially children.”
I ponder if judges really remember how difficult the practice of law really is?
*I usually agree with (and even celebrate the writing of) Justice Pazaratz because he regularly expresses the state of the law with style, clarity and wisdom. I believe he is a judge that truly cares about his cases.
This article was recently published in LexisNexis’ LAW360 at https://www.law360.ca/ca/family/articles/2384573/do-judges-remember-what-it-was-like-to-be-a-lawyer-
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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