There once was a time when civil litigation lawyers handled all non-criminal court matters including family law. That is the same lawyers that represented accident victims or wrongfully dismissed employees also represented separated spouses. The same practice standards and rules of court that applied to litigation cases were also used for cases involving families and children. By the 1970s, family law became a distinct area of practice in Ontario. Family law grew out of civil litigation. In 1977, there was a pilot project in Hamilton, the the Unified Family Court. By the early 1990s, academics, lawyers and government recognized that the resolution of divorce cases was different than all other types of civil litigation cases. Unlike the other cases, family law dealt with sensitive issues such as parenting, mental health, domestic violence, and child welfare. Unlike other practice areas, the effects of family justice were prospective and affected families for many years into the future. The skills that were needed by lawyers in family law were different than in other litigation cases. The Impact of high conflict family law on separating families was recognized.
In 1999, the Family Law Rules were introduced creating a new and different philosophy for the practice of family law in Ontario. The past philosophy and practices of litigation were replaced with a softer, more family-centric approach to the resolution of family disputes. With these new rules, gone were the days that the first step in a divorce case was a contested motion. It was important for older lawyers learn softer skills when representing separating spouses. New lawyers began entering family law from disciplines such as psychology and social work. Law schools were teaching alternative dispute resolution techniques. It was important for all lawyers to become more cognizant of how the justice system could be leveraged as a source of positive change for the future of the divorcing family.
Under the old system, lawyers could begin a divorce case by filing affidavits containing criticism of the other spouse to obtain temporary orders of custody of the children, exclusive possession of the matrimonial home and support. Based on the new rules, lawyers were blocked from doing this. Motions, pre-trials, and trials were replaced with judicial conferences, court-connected mediations, and diversions out of court. In fact, in the 2005 case of Rosen v. Rosen, Justice Wildman stated:
“Generally motions are now discouraged as the opening step in a family law file. The philosophy of the Family Rules is to encourage parties to sit down in a case conference prior to a motion, to see if some or all of the issues can be resolved, either directly or with input from the presiding judge. There is a deliberate attempt to try to avoid the damage that flows from the “nasty affidavit war” that accompanies the filing of a motion. This approach has been tremendously successful. The vast majority of cases are resolved at a case conference without the need for a formal motion.”
Years later, in the 2016 Court of Appeal case of Frick v. Frick, Justice Benotto stated:
“[t]he Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. [They] provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.”
For the most part, there has been a shift away from aggressive litigation tactics to a more conciliatory and solution-oriented approach to divorce cases.
However, there remain practitioners who employ old-school litigation tactics to gain the upper hand in divorce cases. Some of these lawyers were trained by the old guard who only know of such methods. Others treat family law as a competitive sport with a win-at-all-costs approach. Then there are those lawyers who bring their problems to their professional work. Whatever the reason, some of these lawyers are known to the judiciary, the bar, and the public. Indeed, some clients specifically search out and retain such lawyers because of those attributes.
Within family law cases, there are levels of conflict. Some cases are considered low conflict and, with the help of good counsel, they are settled fairly, speedily and inexpensively. At the other end of the spectrum of cases are the high conflict divorces. The cause of the high conflict has been studied by researchers and academics. Moreover, impact of high conflict family law is very important to understand. Indeed, think-tanks and organizations have been formed to address ‘the high conflict divorce’. One of the leading scholars in this domain is Bill Eddy who is a lawyer, therapist, mediator, educator and the Founder of the High Conflict Institute.
Eddy developed the “High Conflict Personality” theory and is regarded as an expert on family law disputes involving high conflict personalities. He has educated and trained lawyers, mediators, and judges in the US, Canada, Australia, France, and Sweden. Eddy has authored a number of books including “High Conflict People in Legal Disputes”.
Eddy describes a High Conflict Person as one who exhibits “a pattern of high conflict behavior that increases conflict rather than reducing or resolving it. This pattern usually happens over and over again in many different situations with many different people.”
Eddy has posited that in some cases the source of the conflict is the lawyer. Whether the high conflict person is the lawyer or the client, he suggests that high conflict behavior includes all-or-nothing thinking, the need to blame others, a lack of empathy, avoidant behaviour and an inability to self-reflect.
Following Eddy’s research, this writer suggests that there exist some lawyers who demonstrate high conflict behaviour in the course of their practice of family law. Such lawyers drive the conflict on behalf of the family. They tend to use inflammatory language, make false representations and employ exaggeration as part of their written and oral submissions. They exhibit a pattern of rude, provocative and disruptive conduct. These lawyers fit within the framework described by Eddy. As he suggests, these lawyers fail to analyze the situation adequately, fail to consider the different viewpoints and fail to explore alternative solutions. They typically rush to judgement and use blame and fault as the basis of their case. For these lawyers, compromise and flexibility are not common. This is what historically may have lead to the “nasty affidavit war” described by Justice Wildman in Rosen v. Rosen.
Clients of these lawyers may not be aware of their lawyer’s high conflict tendencies and believe that the lawyer’s approach to their case is commonplace. For high conflict lawyers, the conduct of the case is very personal, and they may feel like it is a yardstick of their ability to be a strong and forceful lawyer. As Eddy describes, “they focus on attacking and blaming someone else and find fault with everything that person does, even though it may be minor or non-existent.” These lawyers see no fault in themselves and see themselves as free of all responsibility for the problem. By blaming the other spouse or lawyer, these lawyers feel better about themselves. They are often blind to the connection between their behaviour and the problems they are causing to the family.
The Rules of Professional Conduct prohibit lawyers from knowingly attempting to deceive a judge or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit or suppressing what ought to be disclosed (Rule 5.1-2). Despite this, these high conflict lawyers make it a habit of using exaggeration, overstatement, and hyperbole as part of their drafting of court documents such as briefs, affidavits and facta, and in oral submissions to the court.
This writer has observed that these lawyers do not just do this once or occasionally, but it is part of their pattern of conduct. This behaviour often causes the other lawyer to respond in-kind, which then cycles around, while the family, the spouses and the children suffer. In the end, the family’s fortunes are depleted, and long-term damage is caused to the family for many years that follow the settlement or trial. For these lawyers, the clients come and go, but their pattern of conduct keep them behaving this way.
This behaviour has not gone unnoticed. On March 21, 2017, Christie Blatchford published an article called “Getting to the root of Ontario’s family law mess”. In referring to this category of divorce lawyers, Blatchford asks the question:
“How is it that these courts remain the expensive, convoluted, soul-crushing places they have become and how is that the players have allowed it to become normalized?”
In a US blog post called “False Allegations In Divorce Must Stop”, its author Jackie Pilossoph wrote:
“I hope lawmakers will take action to deter people from acting out in the vindictive and disgusting manner of falsely accusing someone for their own ulterior motives during or after a divorce.”
In cases where lawyers regularly use inflammatory language, false representations, and exaggeration as part of their submissions to the court, and exhibit an ongoing pattern of rude, provocative and disruptive conduct, a complaint may be filed with the Law Society of Ontario. Our regulator may consider this professional misconduct and act in the public interest to end this pattern of conduct and protect future clients, families, and children. In some cases, these lawyers’ misconduct has been identified on Google Reviews or LawyerRatingz to warn others.
Ontario families and children are very fortunate to have a large number of highly qualified, competent and caring family law lawyers, mediators and judges to help them resolve their divorce. The vast majority of cases are resolved outside of court by using these highly skilled professionals to help them navigate their divorce process and arrive at a fair, speedy and long-term settlement. As a result of the high quality of work done by such capable professionals, these families and children can enjoy a future of civil, respectful and cooperative relationships. However, regretfully, there remains a small number of family law lawyers who act inappropriately and, in so doing, cause prejudice to the family, heightened acrimony between the spouses and damage to their children. The writer suggests that such behaviour should be called out by clients, sanctioned by judges and regulated by the Law Society. By doing so, families and children can expect to receive the highest quality of professional care from family law lawyers when they are facing their most desperate moment and require the proper standard of care.
1 Rosen v. Rosen, 2005 CanLII 480, Ontario Superior Court of Justice (Wildman J.)
2 Frick v. Frick, 2016 ONCA 799 (CanLII), Ontario Court of Appeal
3 “High Conflict People in Legal Disputes”, by Bill Eddy LCSW, High Conflict Institute
4 “Getting to the root of Ontario’s family law mess”, National Post, March 21, 2017, by Christie Blatchford https://nationalpost.com/opinion/christie-blatchford-getting-to-the-root-of-ontarios-family-law-mess
5“False Allegations In Divorce Must Stop”, Divorce Girl Smiling, by Jackie Pilossophhttps://www.divorcedgirlsmiling.com/false-allegations-in-divorce-must-stop/Share this article on: