Family Law AMA

[Garfield]

On 2/11/2022 at 8:33 AM, Phaedrus said:

4) Again, Children's Aid is a government position so the application process is standardized. There's more turnover so positions tend to open up regularly enough.

Why is there high turnover for children's aid positions (other than the reason that you have to deal with matters relating to saddening and terrible events)? I'm interested in child protection and wanted to ask to find out about other issues that I haven't turned my mind to (e.g. there is a low chance of becoming permanent, lawyers with the same skill set prefer to go solo, too many hours given the rate of pay, etc.). 

[artsydork]

15 hours ago, Garfield said:

Why is there high turnover for children's aid positions (other than the reason that you have to deal with matters relating to saddening and terrible events)? I'm interested in child protection and wanted to ask to find out about other issues that I haven't turned my mind to (e.g. there is a low chance of becoming permanent, lawyers with the same skill set prefer to go solo, too many hours given the rate of pay, etc.). 

I guess it depends on the Society. Legal turnover is low in the jurisdictions that I practice in. Social worker turnover, on the other hand, is ridiculous.

There are limited appointments for the counsel positions. Some are contracr but most have a lawyer or more on staff. Your clients are social workers who may have poor understanding of the law and/or taking hardline positions that the courts warn against. It can be tough also as each worker/team has a different personality. And you're constrained within the parameters of what the legislation says.

It's akin to Crowning in the family law world but with less resources at your disposal.

 

[Phaedrus]

In my jurisdiction, there seems to be higher turnover as a result of understaffing (and available lawyers having to manage files in 2-3 different counties). Those jurisdictions also have limited family court resources (including sitting justices - a grip within the bar), so they have full-docket days with substantive hearings multiple days a week. It's a mountain of work, and it can be emotionally draining work. With understaffing, and in government where vacation has to be pre-approved, it can be hard to get away at all.

[Garfield]

I have found that many lawyers practice both family and criminal law or have seen many criminal lawyers transition to a family law practice. It's clear that family law and criminal law intersect and I am curious as to exactly how. Is it because it is common that clients have a need for both services at the same time? For example, I can see how domestic violence issues would require both family and criminal law services. 

To the other point I alluded to, why have many criminal lawyers transitioned to a family law practice? This observation of mine is of course purely anecdotal and I have not seen hard data on this. Also, does the inverse (family lawyers transitioning to a criminal law practice) happen commonly? 

My last question is: if you are interested in family law and child protection, would it be useful to gain some kind of experience in/exposure to criminal law? For example, I am wondering whether, in your opinion, it would be useful to work at a firm or legal aid clinic where you can get exposure to both family and criminal law. 

[Aureliuse]

14 hours ago, Garfield said:

I have found that many lawyers practice both family and criminal law or have seen many criminal lawyers transition to a family law practice. It's clear that family law and criminal law intersect and I am curious as to exactly how. Is it because it is common that clients have a need for both services at the same time? For example, I can see how domestic violence issues would require both family and criminal law services. 

To the other point I alluded to, why have many criminal lawyers transitioned to a family law practice? This observation of mine is of course purely anecdotal and I have not seen hard data on this. Also, does the inverse (family lawyers transitioning to a criminal law practice) happen commonly? 

My last question is: if you are interested in family law and child protection, would it be useful to gain some kind of experience in/exposure to criminal law? For example, I am wondering whether, in your opinion, it would be useful to work at a firm or legal aid clinic where you can get exposure to both family and criminal law. 

A preamble is in order: I am absolutely clueless when it comes to criminal law. I have practiced family law exclusively since my call to the bar.

1.  It may have do with having a steady stream of income, especially for those who are on their own (sole practitioners) or those who practice in a small firm setting. Doing family law exclusively on your own may not be that lucrative.  Family law legal aid certificates pay so little.

Most family law clients I have do not have criminal law issues. There are some separations caused by a domestic violence incident or a mischief of property incident (keying your spouse's car or kicking the door in, SWAT style).  DUIs, history and pattern of abuse, drug addictions, child porn are the kind of criminal justice issues that often attract serious scrutiny in family law courts.

2. It might be the perception that on the family law side, we never seem to run out of work. This is true to an extent, but many do not realize that a lot of our middle-class clients have to go self-rep because of the high cost of motions and trials. There is a lot of work to be done, but not many clients can pay for all of it.

If you are in bail court or pretrials often on the criminal law side, you can see how busy family law courts often are on motion and conference dates - see GTA family law courts.

3. Have a basic understanding of criminal law does help, but it is not required. It can helpful if your client needs a criminal defence counsel who can vary his/her Recognizance conditions in order to facilitate childcare, parental communication, or retrieval of personal possessions from the matrimonial home.

I mostly refer my family law clients who have criminal law issues to my colleagues who do criminal defence 24/7.  I have four to five criminal law firms on speed dial.

Addendum:

There is a common perception among some lawyers in other practice areas that "family law is easy. It's just kids, property, and support." Some counsel like to dabble in family law. This is so dangerous in practice. Client management is an art form in family law that not many can master. You don't know what you don't know until you are on the eve of trial and realize that you haven't plead a relief your client is entitled to from the beginning.

Once you start working on high net worth family law files, pensioner files, family-owned corporations/trusts, niche and emerging business valuations, international divorces/marriages, and parental alienation files; family law can get sophisticated fast.

Edited March 30, 2022 by Aureliuse

[artsydork]

I'm going to provide a counter-point to Aureliese and say that every family lawyer should understand a bit of criminal law and procedure. If I get another family lawyer freaking out about a peace bond, or invite their client to breach by serving documents or communicate when their conditions don't permit, or dealing with counsel who don't know how to read a recog or probation order, or have a basic understanding of how the criminal justice system works ("lEtS wAiT uNtIl HiS tRiAl Is DoNe" after a recent arrest, etc.), I just might spontaneously combust one of these days!  It's aggravating, slows down files for no reason, and don't get me started on negligence issues (such as when a prominent lawyer told their client to just write an apology letter to the complainant. Seriously? That was a fun breach file to pick up!). I've also seen terrible, terrible affidavits written by counsel ("I never hit the Respondent - I simply pushed him and held him down. <--- thanks for the sworn statement made through counsel that can be acknowledging an assault) or where family documents can be used in the court of criminal proceedings. There is a lot of interplay between the 2 areas.

Family lawyers should also have an understanding of intimate partner violence and should understand how to screen for it. IPV affects all walks of life - my IPV files range from social assistance, to blue collar to upper-middle class professionals. There are practical considerations such as bail variations where your client doesn't have criminal counsel and duty counsel won't assist. I've also had to organize HRT meetings with the Crowns where my client was continued to significant ongoing abuse. 

All that to say, this does not mean a family lawyer needs to know how to run a criminal file, or understand what an O'Connor application is (though probably should know what a WAGG motion or Khan application if CAS is involved), but needs to understand some basic principles. 

Next, I thought I was one of the only people in the world that left criminal law to practice family exclusively (/s obs but only a little). People start family practices for the reasons that Aurelise said - it's a simple enough practice to start with a "low" learning curve on basic issues (but can get complex really fast), legal Aid Ontario pays decently for a family file and few lawyers actually accept certificates, so it's a great way to build a practice. Fully agree with their observation about client management -  a dabbler comes in spouting non-relevant shit or acts as a mouth piece for their client. Their client might appreciate the theatrics but no one else, including the judge, does.  Also, dabblers often don't realize certain procedural issues like the importance of a reply affidavit (lawls) or, you know, having conversation with opposing counsel or make huge deal over nothing ("YoUr ClIeNt DiDnT rEtUrN tHe PaNtS!!!")

I don't know too many family/criminal hybrid lawyers (apart from duty counsel) - most "generalists" that I know that include family law in their practice rarely include criminal law. There are a few that do both, but I see more family lawyers that do real estate/wills or general litigation instead of a family/criminal law practice (unless they're setting themselves up for an SCJ appointment) Criminal lawyers have busy schedules that doesn't match well with a family practice. My managing partner does both and I pick up a lot of slack during criminal trials. I have seen an uptick in criminal lawyers that practice parent-side child protection cases - they take an interesting approach to child protection issues. 

All this to say, @Garfield yes, if you want to practice in family law and child protection law, get exposure to criminal law, even if it's just the basic classes and sitting in bail court. 

 

 

Edited March 31, 2022 by artsydork

[Lawstudents20202020]

On 3/31/2022 at 11:48 AM, artsydork said:

say that every family lawyer should understand a bit of criminal law and procedure.

As a fairly green family lawyer, I did not anticipate how often I would come across. Criminal issues. Most of my stuff is legal aid and if I'm taking on a ministry file, theres a really good chance there's criminal issues at play too. 

[Aureliuse]

Here is a cautionary tale of why you should not dabble in family law:

https://www.slaw.ca/2022/04/28/dont-dabble-in-family-law-a-lesson-in-negligence/

Notable Excerpts:

Quote

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.

Quote

In 2013, The Action Committee on Access to Justice in Civil and Family Matters observed that family law is the “poor cousin” within the justice system, and regarded as an “undesirable area of practice by some lawyers and law students” (13). In the context of family violence, Hon. Donna Martinson Q.C. and Dr. Margaret Jackson have argued that “devaluing” family law is extremely problematic, and that a “lack of effective legal representation for women in family law cases” is an “inequality” issue (72-73). In the US context, Barbara Glesner Fines and Cathy Madsen have argued there “is considerable evidence that neither society nor the legal profession care enough about monitoring or improving family law practice. The low status of both clients and attorneys in family law exacerbates the undervaluation of this critical component of our legal system.”

 

[Hegdis]

Going back to the earlier criminal law discussion, I'd encourage any family lawyers to contact the Crown office to discuss the terms of a release order / peace bond / probation order if there is ongoing matters in family law. No lawyer wants to create a conflict situation and whether your client is the accused or the complainant / victim in the criminal file, the Crown wants to know if there are family law orders or proceedings going on. It's very easy to add a clause "except through or in the presence of counsel" to a term - and that covers family lawyers as well as criminal defence lawyers.

I should add there is no need to get chatty about your client's personal circumstances - in fact you shouldn't - but the mere existence of ongoing matters should be enough to get an exception clause.

[Garfield]

I was wondering if anyone could speak to hireback in family law. Is it common that articling students are not hired back and will have to look for jobs as a first year call? I was under this impression due to the relatively smaller size of family law firms.

[Dr. Divorce]

On 6/6/2022 at 8:41 PM, Garfield said:

I was wondering if anyone could speak to hireback in family law. Is it common that articling students are not hired back and will have to look for jobs as a first year call? I was under this impression due to the relatively smaller size of family law firms.

It really depends on many factors, including  whether the firm will have the work to feed another associate. At my firm, which is a family law boutique, we only bring on an articling student if we have enough work to feed and keep on an associate, and will keep that person on as long as they fit with the culture of the firm and work sufficiently hard. It's a good question to inquire with a given firm: what is their history of bringing on an articling student and keeping them on.

[Garfield]

On 5/19/2022 at 12:30 PM, Hegdis said:

Going back to the earlier criminal law discussion, I'd encourage any family lawyers to contact the Crown office to discuss the terms of a release order / peace bond / probation order if there is ongoing matters in family law. No lawyer wants to create a conflict situation and whether your client is the accused or the complainant / victim in the criminal file, the Crown wants to know if there are family law orders or proceedings going on. It's very easy to add a clause "except through or in the presence of counsel" to a term - and that covers family lawyers as well as criminal defence lawyers.

I should add there is no need to get chatty about your client's personal circumstances - in fact you shouldn't - but the mere existence of ongoing matters should be enough to get an exception clause.

Are there common examples of this, i.e. situations where aspects of criminal law matters create or aggravate conflict situations in family law proceedings?

Edited August 26, 2022 by Garfield

[Aureliuse]

On 8/25/2022 at 8:06 PM, Garfield said:

Are there common examples of this, i.e. situations where aspects of criminal law matters create or aggravate conflict situations in family law proceedings?

Some criminal charges can be the death knell of your family law case, especially on parenting-related issues:

When a criminal charge occurs in the home, the parent who is charged is often escorted off the premises by police officers. The other parent gets "de facto" exclusive possession of the matrimonial home due to the "no contact, do not attend" conditions associated with criminal charges. This in turn, triggers child support/spousal support obligations.

A strong case for supervised parenting time (access) can be made for parents charged with DUIs (don't want the kids in the car), domestic assault, pedophilia, drug-related charges, breach of recognizance (bail) etc.

There may be ancillary conditions to parenting time with drugs and alcohol-related charges: alcohol testing, drug testing etc. Some will even trigger Children's Aid Society involvement.

If a parent lost a job due to a criminal charge (or is unemployable/imprisoned), child support arrears can accumulate rapidly. The family law courts may not be so merciful when imputing income back to the parent. The reason goes: why should a child suffer for a parent's poor choices. By extension, a motion to change in the future might also include claims for retroactive support arrears.

Any criminal charge laid against a parent for crimes against another parent, a child, or a supervisor of parenting time; can lead to a breakdown of the parenting schedule; which could lead to motions and urgent case conferences.

EDIT: One more point: for highly aggressive (unnecessarily so) family law lawyers, criminal charges (even if not guilty) can be an invitation to begin the most sensationalist drafting on affidavits and pleadings. The case can become bogged down in the "battle" and the "focus" on the child becomes lost in the process.

TL;dr - pls no commit crimes, your family law lawyer is busy enough.

Edited September 2, 2022 by Aureliuse

[Phaedrus]

I'd agree with everything above. I'd simply concur with Hedgis that having an awareness of the family law implication of criminal charges is invaluable in the criminal context. Counsel need to be live to these issues when release planning, as we want to ensure there are appropriate protections/considerations in place to facilitate decision making and parenting time (or if it best that there be no contact and the parties be required to make arrangements through counsel/court). 

As with any new client, you/your firm need to conduct thorough conflict checks. I've encountered situations where I've been duty counsel for cells matters and a person is in custody for IPV-related charges and, lo and behold, they're the opposing party or that person's new partner. Even becoming aware of the charges puts you in an awkward position. An aside point, but one to consider. 

[whoknowsnoti]

Would family law boutiques in Toronto be willing to interview an SCJ clerk who summered in civil lit? I have developed a late interest in family law and would want to at least try to see if it's possible to start at a family law boutique post-clerkship.

[Aureliuse]

19 minutes ago, whoknowsnoti said:

Would family law boutiques in Toronto be willing to interview an SCJ clerk who summered in civil lit? I have developed a late interest in family law and would want to at least try to see if it's possible to start at a family law boutique post-clerkship.

Yes, some boutiques don't require prior experience. There was a posting recently looking for an associate, no prior family experience necessary.

[Garfield]

On 4/2/2023 at 4:23 PM, whoknowsnoti said:

Would family law boutiques in Toronto be willing to interview an SCJ clerk who summered in civil lit? I have developed a late interest in family law and would want to at least try to see if it's possible to start at a family law boutique post-clerkship.

do it they would absolutely love to have you

[Garfield]

There were questions on this thread previously asking how much associates can make at family law firms. I can confirm that on the high end for first year lawyers, salaries can be $100,000-120,000, not including bonus of course. I have not heard higher than that. 
 

putting it out there to help out some folks in negotiating their salaries.