The Impact of High Conflict Family Law Lawyers on Separating Families

  • July 09, 2020
  • Steve Benmor

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, the Unified Family Court was created as a pilot project in Hamilton. 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 needed by lawyers in family law were recognized to be different than in other litigation cases.

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. Older lawyers were required to 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.  All lawyers needed to become more cognizant of how the justice system could be used 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. Under 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 1, 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. Frick2, 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.