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Archive for the ‘Legal Ethics’ Columns

On a Slow Train to Nowhere: Paralegal Family Law Practice in Ontario

Every year, tens of thousands of Ontarians go through divorce or separation. Should these people have access to family law services provided by non-lawyers? What if these service-providers were paralegals trained in family law, insured, and regulated by the Law Society of Ontario?

At present, the official answer is no. No one who is not a full lawyer is allowed to engage in any independent family law practice in Ontario. However, multiple expert reports have endorsed paralegal family law practice for Ontario.

The Case for Paralegal Family Law Practice

The case for this reform is straightforward. The majority of separating . . . [more]

Posted in: Legal Ethics

Should There Be a Different Code of Conduct for Family Lawyers?

In November 2021, the Child and Youth Law section, the Family Law section, and the Ethics and Professional Responsibility Subcommittee of the Canadian Bar Association (“CBA”) submitted a proposal for two amendments to the Model Code of Professional Conduct to the Federation of Law Societies of Canada. The CBA recommended that the Model Code include a section for non-adversarial advocacy as well as distinct standards for the practice of family law. To be sure, there are unique qualities to family law, but the question is whether family law is so different that distinct professional rules are required for lawyers. In . . . [more]

Posted in: Legal Ethics

A Family Lawyer’s Duty to Discuss Reconciliation With Clients: Time for Change?

Should lawyers be marriage counsellors? The Divorce Act seems to think so. For reasons discussed below, I’m less sure.

The Divorce Act—the federal legislation that governs divorce in Canada— has been the subject of increased attention because of significant amendments made in 2021. On Slaw, for example, Deanne Sowter published two thoughtful columns addressing what these amendments mean for family law lawyers (see here and here). Not having practiced or taught family law, I wasn’t familiar with the details of the legislation, but was interested in the impacts of the 2021 amendments on lawyers. Before I could consider . . . [more]

Posted in: Legal Ethics

Online and in-Person Hearings: The Best of Both Worlds

For a while during the pandemic, online hearings were the only option for courts and tribunals. Justice was done on Zoom, or else it wasn’t done at all.

Now, as we emerge from the age of Covid (knock on wood!), online vs. in-person is a recurring controversy across Ontario’s justice sector. After the Superior Court of Justice ordered most contested family law matters to return to court, a group of family bar lawyers organized in defence of the online option. By contrast, the Landlord and Tenant Board is insisting on fully online practice, while the Advocacy Centre for Tenants Ontario . . . [more]

Posted in: Legal Ethics

Personal Conflicts of Interest and the Junior Lawyer

In April, former Alberta Justice Minister Jonathan Denis was found in contempt of court because a letter sent on his behalf threatened to bring an action for defamation against a plaintiff who was in the middle of giving testimony in a civil trial.

The plaintiff, Dr. Sauvageau, was Alberta’s top forensic pathologist from 2011-2014, and was suing the province alleging that she had been forced out of the job because she raised concerns relating to political interference. Mr. Denis was not a defendant in the action, but was the justice minister at the time the allegations pertain to.

As reported . . . [more]

Posted in: Legal Ethics

Don’t Dabble in Family Law: A Lesson in Negligence

Family law has always had a reputation for being soft law, the area that lady lawyers practice, and a pink ghetto. Family law is not easy. There are upwards of 70 pieces of family law related legislation across Canada, to say nothing of the rules of court and process related legislation and skills, financial complexities, and family violence concerns. When no-fault divorce was introduced in 1968[1], lawyers did not specialize in family law. According to Constance Backhouse “most male lawyers eschewed divorce as odious, describing it as more ‘social work’ than ‘real law,’ and expressing reluctance to . . . [more]

Posted in: Legal Ethics

Keeping Secrets: A Lawyer’s Obligation Not to Disclose Confidential Information to Spouses and Significant Others

The topic of lawyer confidentiality often yields lively discussions when teaching legal ethics to law students. Some of this engagement flows from high-profile, attention-grabbing case studies like wrongful murder convictions, buried bodies, and concealed videotapes depicting horrific crimes. Even the more routine aspects of lawyer confidentiality, however, spark good conversation. For example, most students are curious about how common behaviours, like working outside the office, sending emails or using social media, may give rise to inadvertent confidentiality breaches.

Another topic that often interests students is whether lawyers can talk about client matters with spouses or significant others. . . . [more]

Posted in: Legal Ethics

Justice in Tribunals: At the Government’s Whim

Suppose that “JM” is a Canadian person, who believes that their legal rights have been infringed. The problem might have arisen at work, at home, with a corporation, or with some part of the government. JM has tried to resolve the matter privately with the other side, but got nowhere. Next, JM did some online research and perhaps spoke to a lawyer. It turns out there is a public body that’s supposed to make decisions, and uphold rights, in disputes like JM’s.

JM brings their dispute to that body. JM wants to be heard, by someone who is competent and . . . [more]

Posted in: Legal Ethics

Lawyering in a Family Justice System That Masks Violence

The family justice system masks family violence. There does not seem to be a dominant consideration of safety, including where there is family violence, beyond the best interests of a child analysis giving primary consideration to the child’s safety (see: Divorce Act, RSC 1985, c 3 2nd Supp, s 16(2)). Research shows that lawyers will advise their clients not to raise family violence as an issue, for fear of retribution and because the justice system does not recognize it properly. When women do make claims of family violence, abusers will make counterclaims of alienation (as an excuse for why the . . . [more]

Posted in: Legal Ethics

Workplace Misconduct by Canadian Judges

Last month, the Washington Post ran a story about the abrupt removal from a form sent “to thousands of judiciary staffers who work for federal judges” of a question regarding workplace misconduct. An official quoted in the story characterized the initial inclusion of the question as “an unfortunate administrative error.” Before the question was removed, however, “34 of about 40 employees — nearly everyone who responded — indicated that they had observed some form of inappropriate behavior.” While the small sample size, and reported concerns about the broad wording of the question, make it inappropriate to draw definitive conclusions from . . . [more]

Posted in: Legal Ethics

Justice in Your Neighbourhood?

I live in Etobicoke, Toronto’s western suburb. We used to have our own courts, right here in the west end. There were family and criminal courts at 40 East Mall, and a Landlord Tenant Board outpost on Dundas Street West. Just over the Humber River, in the original City of Toronto, there was a Small Claims Court on Keele Street (pictured above). People asserting civil rights, or facing criminal charges, could visit a courthouse in their own community.

Nowadays, there isn’t a single physical court or tribunal of any kind in Etobicoke. To get to a family court or small . . . [more]

Posted in: Legal Ethics

Judging Family Violence: Recommendations for Judicial Practices and Guidelines in Family Violence Cases

There have been some recent legal developments that compel us to consider the role and responsibilities of judges in cases involving family violence. First, amendments to the Divorce ActRSC 1985, c 3 (2nd Supp), came into effect in March 2021 and the Act now stipulates that family violence is a factor relevant to the best interests of the child. Family violence is finally recognized federally as germane to judicial decisions on parenting, though it is not explicitly recognized as relevant to whether negotiated settlements are an appropriate expectation, which has important implications for the judge’s role in . . . [more]

Posted in: Legal Ethics