Introduction
Over the past year or so, I have had the chance to speak with many colleagues about their current cases, and we have agreed that 2024 has been a rather challenging year for many of us, professionally speaking. In any given year, there will be cases that I agree to take on, and other cases that I decide to take a pass on. One of the major factors in helping me decide whether to take or not take on a case is the issue of time commitment – do I currently have enough time to effectively represent the client? Do I have too many cases on the go? Am I going to trial soon on several matters that may take me away from my ability to service the time expectations of my clients? It seems simple enough to assess at the onset of the call with a potential client, and I usually make this decision quickly after speaking with the potential client.
But what I have encountered more so this past year, a lot more so than in other years, is that some clients are wanting a lawyer to not only take on their case, but to take on their cause. As I said, other lawyers have related the same shared experience and anecdotal stories to me. It is not just that the client wants to hire me to represent them on a case that is usually quite contentious, but in addition to that, to have me address a greater social problem that is bigger than the case itself. I will paraphrase the late, great actor, James Earl Jones, in “A Field of Dreams” where his character in the movie tells Kevin Costner’s character, “I don’t do causes.” (On a side note, it is one of my favourite movies of all time). I am a sole practitioner, with only one support person (as good as she is, she is only one person, too), and I am unable to dedicate the time, energy, and expense necessary to take on a client’s cause.
This blog will focus on identifying the common causes with which potential or actual family clients approach me, and other family law lawyers. I will discuss why they wish to challenge a perceived large-scale injustice, and why it is unlikely to succeed. Finally, I will present a possible alternative to picking a fight in court with a seemingly unwinnable cause. The solution often lies in how one goes about righting a wrong.
Cause “A” – The CAS
Along with doing domestic cases between family law parties involving themselves and/or their children, I also represent parties who become involved with child protection agencies (“the CAS”). These cases are quite challenging, as the involvement of a government agency that may either oversee their parenting abilities, or take their children into care, makes the case very personal, and understandably upsetting, to the client. In many cases, there are underlying issues of addiction, housing, income instability, criminality, and/or intimate partner violence that both complicate the client’s response, yet formulate the CAS concerns. It is quite common to represent a client who has been involved with the CAS on multiple occasions, with other children in the past. Sadly, some of these cases result in the children being permanently placed with the CAS, to be sent to foster homes, or placed for adoption.
Given these often-dire circumstances faced by prospective clients, I am asked from time to time to not only represent a client with a CAS application or status review, but to actively fight against the CAS for doing what it is mandated to do. I am always ready, willing and ready to help the client address to the allegations made against them, and to vigorously represent the client’s interests in court, including going to trial. But what I will not do is challenge the underlying authority of the CAS to do what the Child, Youth and Family Services Act requires them to do. They have a tremendously difficult job to do, and it is both thankless and perilous at times. I will nonetheless question whether they overstepped their mandate or acted hastily or improperly with my client. I will do so with enthusiasm and zeal. But if a client comes to me and has the approach that I must assist them in dismantling the entire CAS-agency system, that I will not do.
I understand that there are many clients and their community advocates who believe the system may have its own biases against certain people. If there is any evidence in my review of the file that workers have exhibited a bias towards my client due to race, ethnicity, religion (or lack of religion), sexuality, socio-economic status, income instability, etc., I will actively respond to it and do whatever I can to address it to weaken the CAS’ case (and strengthen their case). But what I will not do is come to the table with a presumption that the system is inherently biased against the client specifically and/or as a representative of an identifiable group.
As a parent’s lawyer, I must work with CAS lawyers. From my experience, they are all committed and diligent people, and they are there to do their job, as am I. To that end, I will not automatically presume that they, or their agency, is biased. However, I say all of this without diminishing the lived experience of the client. They may sincerely accept and believe there is bias in the system a set out above. I accept that is their reality. I do not wish to imply they are lying or fabricating any facts. Rather, I simply make it clear to the client that this is not my experience, and as such, given my 30 years of litigation, such an approach will not usually help them achieve the ultimate result of having the children returned to them and the CAS out of their lives.
If such clients are looking for a bigger fight, I will not take on the case. I will, however, refer the client to other avenues, such as making an internal complaint to the agency, filing an application with the CFSRB (the Child and Family Services Review Board), or a complaint with the Ontario Ombudsman, which handles complaints against provincial agencies.
Cause B – The FRO
Over my career, no agency has garnered as much anger and vitriol by both sides of a dispute (support recipients and supports payors) as the Family Responsibility Office (FRO). In its several iterations over the last 40 years (from SCOE to FSP to FRO), the current version of FRO is managing so many cases with limited staff, it has tremendous challenges in responding to unending inquiries by parties, lawyers, and other justice players. But yet, it continues to play a vital role in enforcing support orders and ensuring these monies get to the recipients. Thanks to its governing legislation, it has tools it can use to make this happen, whether or not the support payor is cooperative.
As a result, I have fielded many calls over my career to “fight the FRO” for support payors, and so long as the client is ready, willing and able to pay me to do so, I will gladly help them navigate the steps to be taken to protect their rights and address any wrongs. However, much like my dealings with the CAS, I will not take the default position that FRO staff and lawyers hate all men, are against all men, or that I need to fight them on a personal level. (For illustration purposes, I will refer to the support payor as male and the support recipient as female, as that is the most common scenario, although I recognize there are a growing number of female support payors).
As an effective lawyer, I always maintain my objectivity and address the legal issues for the client. That does not mean I don’t understand or empathize with clients who are having their pay reduced by half due to 50% support garnishments, or feel that they are paying too much support, or that their support should be tied to how often the support recipient allows them to see their children. I explain to the client that that there are steps to be taken to address their concerns in the default judgment process, or the refraining motion process, and that picking personal fights with the FRO worker/lawyer, or making aggressive threats in pleadings or in court, will not help them convince a judge that their FRO case has any merit.
Once again, I accept that the client may feel that the FRO system is against them personally, and that I, as their lawyer, must do whatever I can to dismantle the system, so as to never let anyone be mishandled the way they believe they have been mishandled. That’s not my job. As always, I will zealously represent the FRO client to protect their rights, but I will not advance foolish, misdirected, or false claims against the FRO. I have yet to see a case, in my experience, where the FRO’s approach was not guided by the basic underlying principles that apply to all FRO cases: 1) there is a support agreement/order in place with FRO, 2) the support payor is not paying it, and so 3) FRO has taken action. I try and simplify the case to my client, and explain it in these basic terms.
Having said that, I completely understand that in some cases, the support recipient is doing whatever she can to make the support payor’s life miserable. On occasion, I have seen a support recipient who will weaponize the FRO as a means of punishment for the payor’s past or current sins. I will address that with the client, but not necessarily in the FRO dispute process, as it is a separate legal battle to be fought. I will not besmirch my reputation and presume that a FRO representative is actively, intentionally and willingly an agent of the recipient in her campaign of lawfare. As mentioned above, FRO personnel have tough jobs to do, and they must follow the rules and regulations that govern them. When they take actions against the payor, they are doing what they are mandated to do, but it is my job to hold their feet to the fire (figuratively, not literally) to make sure that my clients’ rights, as governed by the law, are not being trampled on. My underlying philosophy in dealing with government agencies is that you catch more bees with honey than you do with vinegar, so I work with the FRO to see if we can find a solution that meets my client’s basic goal. Where they have stepped outside the lines, rest assured that your lawyer will do what they can to fix that problem for you.
A final point in this matter. It has been said that the FRO agency faces the most complaints by consumers. Either they are taking too much or nor paying it out fast enough. Complaints to one’s MPP or the Ontario Ombudsman are the standard means to address a person’s ire with the agency. But please, don’t ask your lawyer to go to war with the FRO in a court setting. If you want effective change, create a grassroots group and petition/advocate your MPPs to change the governing legislation in manner that is fair for all, and not just for you.
Cause C – Biases in Favour of “the Other Side”
Even if a client is fortunate enough to not have the CAS or FRO involved in their family law legal battle, it does not mean they feel the system is fair and just. Far from it. I have seen just as many clients complaint about the underlying biases of the court system in favour of “the other side.” This is generally on traditional gender lines – male vs. female – but in the last 10-20 years, I have seen an increase in complaints/accusations of inherent bias in regards to others, such as:
- sexuality (straight vs. LGBTQ issues)
- race (white vs. all others)
- religion (Christian vs. all others)
- politics (conservative vs. liberal)
- philosophical ideology (DEI vs. traditional)
- socioeconomic status (rich vs. poor)
- citizenship (refugee/immigrant vs. naturalized citizen)
- indigeneity (indigenous vs all others)
- mental health (those without MH issues vs. those with)
Once again, I will reiterate my underlying philosophy that while I do not believe the legal system we have is inherently biased, there are those with lived experiences who will believe just the opposite. I can appreciate that such clients have experienced interactions with people in the legal system who may have treated such clients less than exceptionally on one or more of these basis. We have such an incredible cross-section of people who both service and use the court system that we are bound to meet up with a person who sees the world differently than we do. Gone are the days of our society being an overwhelmingly predominant white, Anglo-Saxon and Protestant (WASP). We are a flourishing multi-cultural society, and there are going to be bumps along they way, so we must be vigilant in tolerating others who are different than us, in all the ways listed above, and more.
Having said all of that, I recognize that many of our laws were written from a conservative, WASP perspective, as that was what governed our country for so many years. We have seen changes to family laws, recognizing same-sex marriage and other such family law rights, families who welcome children into the world other than through procreation between a man and woman, and specialized child protection courts based on religion or indigeneity. There was a proper recognition that laws and their system must evolve to reflect the changing society it serves. Those who brought about the changes did so by advocating in the proper manner to change the laws through the means set by our manner of government. It was not done by rebellion, or by hostage-taking, and demanding change, or else bloodshed would follow.
I say this because, more and more, I am confronted by clients who demand that I exhibit a more aggressive type of advocacy in representing them in family court. They want me to put aside the notions of professionalism and civility that were once foundations of the legal practice and our justice system. They are motivated by a sense of despair that traditional advocacy is outdated an infective, so they demand rebellious, aggressive tone, words and behaviour. They see the other spouse or former partner as “the enemy” who must be defeated. They cast aspersions that the system is “against men,” “against women,” “against old-stock Canadians,” “against racialized/BIPOC litigants,” to name but a few.
To these potential clients, I tell them directly that, although I can understand their anger and empathize with their struggle, I invite them to retain another lawyer if they are adamant to fight with this focus in mind. I cannot and will not fight a system that is filled with biases and prejudices that I cannot and do not see. I know other lawyers will take me to task for this position, but as I am in the late “back-nine” of my career (to use a golf-analogy – yes, I recognize the inherent “privilege” of that analogy to some), I neither have the desire nor the energy to fight the system itself. Rather, I will participate in the justice system we have, and use the rules permitted by the forum and by my esteemed profession, to zealously advocate for my client’s rights. I am more effective for my client in that way. To those who want to fight the system, I say, “best of luck,” and invite them to carry-on with other advocates who are prepared to do their bidding.
In response to these changing times, I will continue to offer my clients alternatives to traditional litigation and the “win/lose” model that most people want in the court system. Where applicable, I offer the client to opportunity to consider alternative dispute resolution methods, including negotiations with the other lawyer/party out of court, mediation, and most recently, the collaborative family law process. These system do have their challenges, such as cost and time, but what they do offer clients is the chance to be the author of their destiny, free of external bias, to write their own agreement or order, rather than leaving it up to a stranger to decide what is best for them and their family.
Conclusion
There are a few takeaways I want the reader to have after reading this blog. I am aware that some people see the legal system as biased and prejudiced to them. Nothing I can say or do I can change that person’s mind, or offer an explanation to their lives experience. It would be insulting and condescending of me to do so. I do not dispute it or discount it. It is just not my lived experience. I am ready, willing and able to represent a client, in-court or out-of-court, to help them resolve their dispute to the best of my abilities. But I will not challenge or “take on” the system, or any of its participants, on a personal level to bring down the person, the agency or the system itself. I do not believe in anarchy and lawlessness. I believe in personal and professional accountability, and in the rule of law. If that is what you want in a lawyer, I am the right lawyer for you. If it is not, then I simply and politely ask that you find the advocate you want/need, as I do not want to waste your time. And, as I said herein, I wish you the best of luck.