WHEN LAWYERS LIE & JUDGES BELIEVE THEM

I previously represented a father of 3 young children. He and his wife were going through the early stages of their separation, while still living together. The children were doing well. They were healthy, happy, and closely bonded with each of their parents. Fortunately, the children did not experience much distress from their parents' decision to separate. ??

In the ideal world, these young parents would have committed themselves to individual and marriage counselling in order to improve their communication, work through their hardships and rediscover the love that originally brought them together and made them decide to have a large family. However, upset, resentment and ultimatums brought about this family’s demise.?

As can be expected, the day-to-day conditions in the home between the spouses were uncomfortable. ??

The mother’s solution was that the father move out and find another place to live. The father wanted to first reach a complete settlement in mediation and determine if they needed to sell the matrimonial home. ??

Many families, just like this one, work out their affairs in a business-like manner - sometimes using lawyers and sometimes using a mediator.?Just because a family separates, it does not mean that the divorce journey has to occur with hostility, blame and conflict. That is a choice that each spouse makes.?

Every once in a while, we find one spouse hiring a lawyer who fans the flame of conflict and causes that spouse to take a very aggressive approach to their separation.??

That is exactly what happened with this family.??

The wife hired a very aggressive lawyer who encouraged the wife to take a combative approach to their divorce. ?This lawyer made it clear that there was only one possible outcome - the one designed by the wife. This lawyer, in fact, openly admitted that unless the wife got her way, then there could be no settlement.??

Aggressive lawyers, like this one, find comfort with demands, threats and litigation as their go-to tools.??

These lawyers begin with an introductory letter with a list of demands, then if the demands are not met, they issue a Court Application, file plenty of court documents, bring motions, make incessant demands for financial disclosure and send volumes of emails and letters. ?All along, the client of the aggressive lawyer feels like her lawyer is ‘fighting for her’. Yet, unwittingly, the aggressive lawyer causes more damage to her children and her future relationship with their father, while spending tens of thousands of dollars on lawyer fees - costs that could have been avoided.??

As a seasoned divorce lawyer, I trusted the family justice system to be able to redirect this family to a more peaceful approach to their separation. That is indeed what the judges encouraged in the conferences. ??

But, as is often the case with aggressive lawyers, they only hear what they want to hear and tune out any alternative ideas. ?The wife’s lawyer then threatened a motion for a parenting schedule. He rejected every settlement overture. He rejected a parenting coach to assist the parents co-parent until their case was settled. He rejected a parenting mediator to assist the parents develop a parenting plan. He rejected a parenting assessment to recommend to the parents a suitable parenting schedule for their children.??

The wife’s lawyer brought a motion for a parenting schedule while the parents were still cohabiting.?

Aggressive lawyers are often not only aggressive, but they also have a propensity to lie to judges. The lies come in many forms such as exaggerations, misrepresentations and omitting material facts. ??

This is where aggressive lawyers’ lies can be most troublesome; because motion judges often dispense ‘rough justice’. ?On motions, there is often conflicting affidavit evidence, no witness testimony, no cross-examinations and little possibility that the judge hearing the motion will know what is true and what is false. So when the aggressive lawyer lies, there is a 50/50 chance that the judge will believe them. ?And that is what happened with this family. ??

On the day of the motion, the wife's lawyer, as the lawyer for the moving party, was given the opportunity to make submissions first. The judge hearing the motion?claimed to have read all the materials (which was quickly evident she did not). She heard 20 minutes of lies, exaggerations and misrepresentations. When it was my turn to make submissions, the judge kept on interrupting me, repeatedly stopped me mid-sentence and directed me to move on to the next point. It was clear that the judge had made up her mind and believed whatever the wife's lawyer told her.??

Of course, when the judge released her Endorsement, it totally favoured the wife and berated the father. Although it was an appealable error, the rules to stay a temporary order, seek leave to appeal and then, if granted leave, to then argue an appeal are extremely onerous and very expensive. ?Judges know that. Aggressive lawyers thrive on that.?

But worse than that, the message that this sends to the aggressive lawyer is that this (mis)conduct works and should continue with all their clients. The message that this sends to the client is that her lawyer will ‘do what it takes to win’. She then refers her friends to her lawyer, who then continues the pattern of aggressive litigation, huge lawyer fees, damaged family relations and the suffering of children.?

So when judges get it wrong, they are not only hurting THAT family, they are hurting many many families, because these aggressive lawyers are rewarded for their behaviour and are sought out by naive spouses whom feel disempowered and are looking for an aggressive lawyer. ??

And so the cycle continues. ??

For 30 years, I have been asked by male clients if the courts and the judges are biased in favour of women. I have always said that family court judges make decisions based on the evidence, the law and what is fair. But when I have a case like this, I completely understand why some might believe that the system is unfair to men, and that aggressive lawyers who lie succeed.??

Despite this, I remain steadfastly committed to family justice and continue to believe that Ontario’s family justice system is fair, balanced and equitable. I remind spouses that, one day, the lawyers will be out of their lives and they will be left to co-exist with their former spouse. I strongly encourage spouses to study the on-line testimonials of the lawyers' past clients from Google and LawyerRatingz before deciding who their lawyer will be. I forcefully discourage litigation and strongly promote Mediation, Mediation/Arbitration and Parenting Coordination.?

There will always be aggressive lawyers. But it will be the client that will determine if their services are helpful or harmful. ??

Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto.?He is a Certified?Specialist?in Family Law and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator, Arbitrator and Parenting Coordinator. As a?Divorce Mediator, Steve uses his 30 years of in-depth knowledge of family law,?court-room experience?and expert problem-solving skills in Divorce Mediation to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.?