Philip Epstein remembered as family law trailblazer, ‘a real mensch’

The photo accompanying an obituary for Philip Epstein shows the renowned and much-honoured family law lawyer and mediator holding a young panda bear. He is smiling ear-to-ear.

The photo was taken in Beijing, China, and “was one of his favourite pictures,” says Kenneth Cole, a founding partner of Epstein Cole LLP in Toronto.

Epstein, who retired from law practice last summer with a career full of awards – including the Order of Canada in February -- and was widely perceived as a trailblazer in Canadian family law, died at home in Toronto on Sunday, of acute myeloid fibromyalgia; he was 78 years old.

The panda picture “amply displays how playful he was,” says Cole. “You think of these professorial people as stodgy (Epstein was also an educator); but he was open, funny, he enjoyed a good joke [and] was playful with people around him. He always had funny story to tell.”

Stephen Grant, a fellow family lawyer and friend of Epstein, remembers his old colleague and occasional adversary as “a really lovely human being” as well as a highly skilled barrister, family lawyer and mediator, and dedicated family man.

“I knew him as the leader of the family law bar,” says Grant, who is a partner in Grant Crawford LLP in Toronto. “I knew him as a force of nature. I knew him as a person who made a difference. … He was a real mensch.”

Described by Canadian Lawyer as “one of Canada’s leading lawyers and lecturers on family law,” Epstein was senior partner of Epstein Cole LLP in Toronto, the author of numerous publications including “Epstein, This Week in Family Law,” published by eCarswell, and editor-in-chief of Carswell’s “Reports of Family Law,” a policy advisor to the Canadian government on family law issues, a lecturer at law schools in Toronto, and a renowned practitioner in mediation, arbitration, and appellate advocacy.

“He was an extraordinary individual, and was able to take on so many projects, and multitask,” says Cole; “and despite the fact that he was involved in so many things, both in the firm and in the profession, he did them all superlatively, and with incredible civility and skill.”

“Mr. Epstein’s impact on the legal community, his leadership in Canadian family law and his contributions to access to justice over the course of his career were significant,” Teresa Donnelly, treasurer of the Law Society of Ontario said in an email to Canadian Lawyer. “His work improved the lives of many.”

Epstein was “a leading light” in family law by the 1970s and is credited with developing the practice area, says Carole Curtis, a judge in the Ontario Court of Justice. A former family law lawyer who was called to the bar in 1978, Curtis later served as a bencher alongside Epstein at the Law Society of Upper Canada (now the Law Society of Ontario) for eight years.

“Family law wasn't important in the sixties at all,” Curtis says, “and it wasn't taken seriously. That's one of the biggest accomplishments of Phil Epstein, is that he made family law important,” along with other leading practitioners of the day such as Jim McDonald, Lee Ferrier and Alan Poole.

“He has made such a significant impact on three generations of family law lawyers,” she says, which “will have the imprint of Phil Epstein on them. It's not possible to overstate his contribution; one of a kind doesn't even cover it.”

Epstein, a native of Hertfordshire, England who emigrated with his family to Canada, earned a B.A. and LL.B. from the University of Toronto and was called to the Ontario bar in 1970 before going to work in the law firm of Strauss and Strauss and then cofounding Epstein Cole in 1978.

He was involved in many significant cases in the family law field in the Superior Court of Ontario, the Court of Appeal, and the Supreme Court of Canada. He was also the head of the Family Law Section for the Bar Admission Course for the Law Society of Upper Canada from 1983 to 1996, and was a chair of the Family Law Section of the Ontario Bar Association.

He was also an elected bencher of the law society from 1985 to 1999, and during that time chaired multiple committees: the Clinic Funding Committee, Articling Reform Subcommittee, Legal Education Committee, Bar Admission Course Review Subcommittee, Admissions and Membership Committee, Admissions and Equity Committee, and Competence Task Force (as co-chair).

 There, Epstein “spearheaded many much-needed reforms,” says Cole.

“He had his finger in many, many different areas at the law society,” Curtis says, and “skills that other benchers didn’t have. Phil really knew the room; he could read Convocation extremely well,” she adds. “He was often able to predict who was going to be treasurer,” who was “electable” and who wasn’t. “It was a very important perspective to bring to that hugely political process.”

Epstein also lectured in family law at the University of Toronto Law School, Osgoode Hall Law School and the University of Sydney.

In private practice, Epstein was “a superb, consummate courtroom lawyer,” Grant says.

He “took on frontier cases with respect to issues associated with domestic contracts, constitutional implications, involving people with mental disabilities and their relationship with family law,” says Cole, and decided to support the Supreme Court’s 2014 Reference Re Same-Sex Marriage, when then-partners Martha McCarthy and Joanna Radbord acted as solicitors for the interveners the Ontario Couples and the Quebec Couple (all litigants in earlier cases) before the court.

He also appeared before the Supreme Court in cases such as Miglin v. Miglin and LeVan v. LeVan, which dealt with separation agreements and marriage contracts, and “which were very important cases in terms of interpretations of the construction of the contracts.”

Epstein was a dispute resolution officer of the Superior Court of Ontario, and later a Certified Mediator/Arbitrator of the ADR Institute of Ontario, and a Certified Mediator with the Ontario Association for Family Mediators.

His “real forte … came when he became more a full-time mediator, because he had an uncanny gift to know where the sweet spot of a deal was,” says Grant. “He knew at what point it was going to settle a case, giving each side what they were interested in getting. As a mediator, it was a real skill.”

In his later professional years, he was probably the go-to mediator and arbitrator in the province of Ontario. He was able to settle very difficult cases, and he was very much in demand because of his ability to find solutions.”

At his own firm, he was “a teacher and mentor to all lawyers the here, right to the end. He had good judgement, and a true sense of fairness.”

Mary-Anne Popescu, Executive Director; Ontario Association for Family Mediation (OAFM), describes Epstein as “an incredible man and mentor,” and “extremely helpful member to other members,” providing “almost a framework for members for what a settlement model could look like,” in an organization where only about half of the OAFM’s members are lawyers. He contributed to the newsletter, and gave the OAFM reproduction rights to “Epstein, This week in family law.”

Epstein was honoured with numerous awards over the course of his career: he received the 1998 Award of Excellence in Family Law from the Family Law Section of the Ontario Bar Association; the Law Society of Upper Canada Medal in 1999 for his service to the profession; and the 2012 Alternate Dispute Resolution Excellence Award from the Ontario Bar Association.

In 2018, Epstein was awarded the Order of Ontario, and in June 2020 the Law Society of Ontario awarded him an honorary Doctors of Law.

In 2020, he was appointed as a member of the Order of Canada.

He was also a great philanthropist, with his firm taking on charitable endeavours every year such as the University of Toronto Faculty of Law’s Pro Bono Students Canada, and being a platinum sponsor of the Association of Family and Conciliation Courts, Ontario Chapter’s Walsh Family Law Moot and Negotiation Competition, which this year renamed a prize in Epstein’s honour.

 “He was successful in most of his court endeavours, but he never left an enemy behind,” Cole says. “He always treated everyone with dignity, respect and professionalism.”

As well as being “the smartest guy I ever knew,” with a keen curiosity, Epstein “was proud to say that in 46 years of working together and 43 years of partnership, we never had a cross word,” Cole adds. “We had different approaches, but we always managed to find a way to do it in a consensual and cooperative manner. The only memories of Phil that I will ever have are fond ones; he left all of us as better lawyers.”

Philip Epstein is survived by his wife, the former Joyce Rapp, whom he met while both were students at the University of Toronto’s University College, and by their son, David, daughters Deborah and Sara, and eight grandchildren.