Family law must reform to reduce hostilities

Our judicial system is facing a crisis caused by COVID-19. The backlog of cases caused by the closing of physical courtrooms is so severe that Crown attorneys are avoiding prosecution of simple drug possession and impaired driving cases. In the midst of this backlog, family courts are having to help parents navigate co-parenting during a pandemic and are also facing an increased divorce rate.

In this environment family law reform is needed more than ever.

There have already been a variety of COVID-19-inspired changes to our family law system. We have finally moved to an electronic system and costs are being reduced by court appearances taking place by telephone or Zoom. Unfortunately, the pandemic resulted in a delay of the amended Divorce Act, which includes various clauses designed to reduce conflict and will now come into force March 1, 2021. However, none of these clauses will fundamentally alter the system and fail to address the elephant in the room: lawyers are profiting from, and perpetuating, the current conflict-based system.

Handling high-conflict cases is an effective, and lucrative, business model. More conflict results in more letters exchanged, documents drafted, court appearances and hours billed. Lawyers simply make more money from high-conflict files than from amicable separations, and so there is a financial incentive for lawyers to engage in high conflict litigation.

Justice Marvin Kurz of Ontario’s Superior Court of Justice recently addressed the role of family law counsel in Alsawwah v. Afifi, 2020 ONSC 2883. In a motion for exclusive possession of the matrimonial home in the midst of COVID-19 the parties produced voluminous materials, much of which he characterized as “unnecessary, excessive, distracting and unhelpful.” Near the end of his decision Justice Kurz addressed the role of family law counsel:

106.        The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.

107.        Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize [this], all too many, unfortunately, fail to do so.

High-conflict cases are almost universally caused by factual and emotionally driven disagreements rather than disputes about the law. If lawyers are willing they will always be able to find a client who is so emotionally hurt by their separation that they want to fight about every issue and raise every grievance that has arisen from the relationship. The problem is not that lawyers are driving the conflict; it is that lawyers are not stopping their clients’ emotions from driving it.

Litigation is necessary in many cases, and sometimes the circumstances of the proceeding make some degree of conflict and animosity unavoidable. Even in such cases counsel have a choice to make between serving as a calming influence in the dispute or being a mouthpiece for a client going through one of the most emotional and difficult experiences of their lives. Counsel can resolutely represent their clients while still ensuring the proceeding remains focused on relevant facts and avoids unnecessary personal attacks or vexatious arguments.

At a time when we need counsel to handle family law matters with empathy, reason and restraint, the bar is proving unable to do so in more cases than it should. It is as adversarial and litigious as ever, as evidenced by the annual tradition of “back-to-school motions” which now have the added twist of being made in the COVID-19 era. If lawyers are unable, or unwilling, to change the way they practice law, societies must step forward to compel the change.

The current Model Code of Professional Conduct is ill-suited to family law. This is not an area of law where it benefits the parties to “raise fearlessly every issue, advance every argument and ask every question, however distasteful.” As well, the code provides simply that “a lawyer should advise the client to take into account the best interests of the child [emphasis added],” and then only “if this can be done without prejudicing the legitimate interests of the client.” Rules such as these do not encourage lawyers to reduce conflict, and too often provide justification for counsel to allow their clients’ emotions to control litigation.

It must be clear that professional obligations extend beyond courteously advancing any argument one’s client wishes to advance. The Model Code already contains special provisions for prosecutors that vary their professional obligations. A similar rule might be crafted for family lawyers, with commentary providing guidance on how to prioritize competing professional obligations. Such commentary might mandate counsel to consider the emotionally vulnerable state of their clients; make advising clients to consider children’s best interests mandatory; contain a clear prohibition against advancing vexatious arguments; and more forcefully require that counsel promote settlement.

As the saying goes, necessity is the mother of innovation. In the COVID-19 era we urgently need to improve the family law system, but we don’t necessarily need dramatic change. The problems in our system might largely be solved if lawyers stopped being a part of the problem and instead became the solution.