Toronto family law lawyer reflects on 34 years in practice

As a young associate in a downtown civil litigation firm, Toronto family lawyer Gary Gottlieb learned important lessons about how to be an effective advocate in the courtroom, but he soon realized that his heart wasn’t into litigating real estate disputes.

The epiphany came on the heels of a two-week trial involving a heated dispute over the square footage of a parking space.

“I won the trial. The judge was so impressed he wrote a letter to my boss extolling my virtues,” says Gottlieb, founder of Gottlieb Law Firm, a Toronto family law practice that focuses on high-conflict divorce and child protection matters.

“But I just couldn’t get passionate about a parking space. I knew I would eventually have to move into a more people-oriented practice of law because I have always been oriented to helping people,” he says.

Lawyer finds his niche

Gottlieb tried to float the idea of a family law practice to the civil litigation firm where he was working but he was unsuccessful. He says the impression of family law in legal circles 30 years ago was that it was less important and that the clients were less valuable.

“To that point, I hadn’t appreciated that there was a distinction between criminal law and family law litigants versus everyone else. I believe there’s nothing more important than helping people resolve their issues — as opposed to fighting over easements and rights of way.”

Not long after, Gottlieb Law Firm was born with the mission to help families during some of the most difficult challenges of their lives. The early days were lean and often lonely, Gottlieb says, noting that he didn’t have the benefit of networking with peers over social media the way lawyers do today.

“Those were tough years. I didn’t have any clients, and I had to learn family law on my own because I hadn’t been trained in it. But because I had a good background in civil litigation — experience in court and the ability to negotiate and work quickly — I started to get referrals.

“To have a solid grounding in the rules of civil procedure and know how to litigate statutory authorities was extremely useful; it allowed me to run circles around counsel who didn’t,” Gottlieb says. “Being a mediator has also sharpened my communication skills as well as my ability to negotiate more effectively with other lawyers.”

Three decades: the good, the bad and the ugly

In the more than 34 years he’s been practising, Gottlieb says he’s witnessed significant changes in family law — the good, the bad and the ugly.

On the plus side, legislative changes to Ontario’s Family Law Act as well as the more recent updates to the federal Divorce Act that focus the attention of family law litigants on what’s best for their children, have had a positive impact on families, says Gottlieb.

“There’s so much more social science literature now on the adverse effects of litigious divorce on children that the courts have increasingly focused on their best interests in determining parenting arrangements and decision-making responsibility,” he says.

Another positive development is that decisions about which parent should have primary responsibility for the children are no longer based on the gender of the parent, Gottlieb says.

“There’s been a huge shift from the default of mothers being awarded (custody). It used to be very female-biased, but now it’s much more gender-neutral. The courts recognize the benefits of having both parents involved in a child’s life in most circumstances,” he says.

The bad news is that there are still too many couples embroiled in protracted battles over money, property and children, says Gottlieb. Despite legal statutes compelling spouses to resolve their divorce outside of court where possible — and the promise of a faster and less expensive divorce — he says couples are still fighting it out in court.

“Not only does a high-conflict divorce leave families emotionally drained and psychologically scarred, but it can also take a huge financial toll. Some people spend years going to court, fighting over children, possessions, assets and debt,” Gottlieb says.

Access-to-justice crisis

The ugly story in family law is the access-to-justice crisis: many people can’t afford to hire a lawyer, but they also don’t qualify for legal aid. The result is a sharp increase in the number of people appearing in court as self-represented litigants. Statistics show that close to 60 per cent of family litigants do not retain legal counsel.

“Unrepresented litigants take more judicial resources, are more difficult to settle with and are often unprepared, causing numerous delays,” Gottlieb says. “Often, they’re working from a place of emotional vulnerability and with the handicap of not understanding the law. Some are challenged with psychological or addiction issues, which can make getting to a resolution very difficult.”

In recent years, budget cuts to Ontario legal aid services have fuelled an increase in those who represent themselves, adding pressure to a system already bursting at the seams, says Gottlieb.

“There aren’t enough judges or sufficient legal aid to support people of modest means. Some lawyers, like us, are willing to help clients with legal aid certificates, but that process has become increasingly difficult.”

Advice for new lawyers

A highly respected member of the family law bar, Gottlieb attributes his success in building a thriving practice, in part, to his laser focus on the issues of the case before him, not the personalities of his client, the opposing side or their lawyer.

“I don’t take things personally, and I much prefer to be on good terms with opposing counsel. Some lawyers try to trash opposing counsel’s client by making accusations about their personality or judgments on their actions. I try to blow away all that smoke and work with the facts as they present themselves. I’m not here to pass judgment on my client or the other side,” he says.

In that vein, he has some advice for new lawyers:

· know the rules

· know the law

· be patient

· take on difficult cases; they will help you learn

· network with more senior lawyers so they can help guide you

· develop a network of peers who are facing similar challenges, so you know you’re not alone.

· don’t shy away from taking children’s aid cases — they are excellent for building advocacy skills

· don’t let your fear of trials stand in the way of doing trials

· don’t wing it in court — be prepared

· don’t worry about spending more time than you can bill.

“The early part of your career is about the learning years; you’re developing skills, and your clients shouldn’t have to pay for that,” says Gottlieb.

More than three decades on, the little firm founded on the desire to give clients strong legal advocacy has grown. Today, the team at Gottlieb Law Firm includes five associate lawyers, three law clerks and two assistants. At the helm is a passionate and respected advocate still fighting the good fight on behalf of his clients.

“I want my clients to feel that I was compassionate, empathetic to their cause, that I heard them, fought hard for them and met their expectations,” says Gottlieb.

Five benefits of settling your divorce outside of court

In a high-profile divorce case from several years ago, an Ontario couple spent four and a half years — and more than $2 million in legal and expert fees — in litigation before the court awarded the wife $10.6 million in spousal support, equalization payment and the proceeds of a life insurance policy.

When a marriage ends, people tend to adopt one of two mindsets: They either want to settle their divorce as quickly and painlessly as possible or they are primed for an epic battle. Those who are not vindictive usually want the most amicable resolution to salvage whatever decency exists between the former couple, especially when children are involved.

Frequently, the ones who come in with guns blazing, intent on getting their day in court, have fixed ideas about their rights and obligations in divorce, many of which are informed by anger and hurt.

While litigation is sometimes unavoidable, it’s almost always in the parties’ best interests to settle outside of court. It’s also important to note that the family judicial system is designed to help couples avoid court by resolving their differences through good-faith negotiations.

There are countless benefits to avoiding divorce litigation, but for the purposes of this post, I will highlight the top five, based on my more than 34 years of practice as a family law lawyer.

1. Less stress

If you’re in the middle of a divorce, you don’t need me to tell you how stressful the experience is. Even amicable splits are fraught with emotion. But a protracted divorce can exact a heavy toll on the parties’ emotional well-being.

The process can drag on for months — or years — effectively stalling spouses from moving forward with their lives. There’s also an added layer of stress that comes with the uncertainty around what a judge will decide for the family.

By contrast, couples who sort out their issues through mediation or collaborative negotiations usually find the process less stressful. It also helps to set the family up for success going forward by encouraging and enabling them to co-operate in resolving future disputes.

2. Lower legal costs (usually)

Litigation is an expensive process. Clients pay for the time a lawyer spends preparing their case for trial, and if their case is complex and involves expert testimony from business valuators, psychologists, social workers and the like, the expenses can add up quickly.

Most people underestimate the amount of time and effort it takes to prepare for litigation. Drafting court papers, collecting financial disclosure and co-ordinating other parties who may be involved are time-consuming undertakings that add to the cost of a case.

On top of that, the court imposes strict limits on the number of pages that can be included in conference briefs, which means lawyers need to spend time synthesizing the information so that a judge can easily glean the most important facts.

By contrast, a negotiated divorce settlement not only generates the best result for a family, it is often a more cost-effective road to resolution. Data from the Canadian Bar Association shows that settlements achieved through alternative dispute resolution serve clients’ best interests in about 90 per cent of cases, compared to around 30 per cent for litigation.

3. Control over the outcome

Asset division, parenting arrangements, child support and spousal support can all be negotiated through an alternative dispute resolution path, such as mediation, arbitration or collaborative negotiations.

People usually don’t recognize that when they ask a judge to decide the matters in dispute, they lose the ability to reach an agreement that will work best for their family. When you go to court, you’re essentially trusting a stranger to make the most important decisions for your family.

Family court judges are exceedingly busy, processing many cases every day. Each one comes with a small mountain of paperwork they must review to get up to speed on the case. While they do their best to understand the dynamics of your case, it is still just one person’s perception — and they could be getting it wrong.

4. Focus on the children’s best interests

Arguably, the most important reason to avoid a contentious divorce is your children.

Litigation creates a hostile environment that pits parents against each other. It’s easy to get caught up in the drama and forget that your children are also going through the most significant change in their lives.

Experts say that a child’s ability to recover from divorce depends to some degree on how parents handle the separation. When parents negotiate an agreement, it demonstrates to their children that they can co-operate in the midst of chaos, and they will have a much easier time adjusting to the changes that come from the divorce.

5. Faster resolution

The wheels of justice turn slowly, especially in COVID times when the courts are more backlogged than ever. Most clients are shocked to learn that getting to their first court date often takes six to eight months.

And long before a case ever gets to trial, spouses have to attend numerous mandatory settlement conferences in an attempt to help them resolve their dispute.

When negotiation won’t work

Of course, there are situations where a negotiated settlement will be unlikely, if not impossible. When one spouse is intent on getting more than their fair share of assets, is requesting unreasonable parenting arrangements or refuses to negotiate, it can stonewall any attempts to settle.

When one or both spouses have a high-conflict personality, a negotiated settlement can be difficult to achieve without highly skilled professional involvement. These types of cases inevitably involve prolonged court battles.

Spouses who can negotiate some or all the terms in their divorce will be in for a much smoother process than if one is determined to have their day in court from the outset.

If you are facing a separation or divorce and would like to understand your options, call us to schedule a consultation. We would be happy to help you.

When children need a legal advocate

Throughout the pandemic, Ontario family law courts have been inundated with cases of separated and divorced parents clashing over what’s best for their children. Judges have heard hundreds of cases with parents at odds over where their children should live and whether they should attend school in person or do online learning.

Most cases the courts heard over the past year involved disputes over parenting, reports The Lawyer’s Daily.

“Approximately 70 per cent of the 506 cases involved only a parenting dispute, and an additional five per cent involved both a parenting dispute and an economic dispute” over property, child support or spousal support, the online legal news outlet reports.

Often in high-conflict cases, it can be difficult for the court to determine what a child wants or needs. Mom says one thing; Dad claims the opposite. In these cases, one or both parents can ask the court to appoint a lawyer who will represent the child and determine their views and preferences. Every year in Ontario, the Office of the Children’s Lawyer (OCL) assists children in more than 10,000 cases by appointing a lawyer whose job is to act as counsel to a child.

This post will give readers insights into how the process works and why it’s an effective method for assessing a child’s viewpoint.

How the OCL works

The OCL typically gets involved in cases where a child is experiencing significant difficulties as a result of conflict within their family.

I’m a panel lawyer for the OCL and frequently represent children in cases where their parents are in conflict as well as in child protection cases involving the Children’s Aid Society. As counsel for the child, my role is to formulate a position as to their views and preferences on the issue in question, which will ultimately be articulated to the parties and the court.

A common scenario where a children’s lawyer can be helpful occurs when each parent claims the child has told them they want to live with them full time. It’s not unusual in divorce for kids to tell parents what they think they want to hear, but that’s often entirely different from what the child believes.

As their legal representative, my job is to get to the heart of the child’s views and preferences, which can be challenging because, in many cases, there has been a great deal of influence on their thinking by one or both parents. The process can take months or longer and involves multiple interviews with the child. It takes time to establish a safe space where they can express their truth. And they must voice consistent views over an extended period.

In child protection cases involving the Children’s Aid Society (CAS), the children’s lawyer acts solely for the child, not their parents or guardians or CAS. As in other matters, our job is to consider the child’s views and preferences, within the context of other relevant factors, and present that to the court.

Fact-finding mission

The questions I pose and how I ask them will look quite different for a six-year-old versus a teenager. Younger children tend to speak openly once they get comfortable, but it usually takes more time to build rapport with older kids.

In cases involving a dispute over where the child will live, it might seem like a good starting point to ask the child directly, “Who would you rather live with: Mom or Dad?” but that’s not effective. Instead, I’ll ask questions that help me better understand their comfort level in certain situations: “What do you enjoy doing most with Mom?” or “How many sleeps in a row are you comfy with at Dad’s place?”

I also review the child’s report cards and assess any special needs they may have. To make informed recommendations about a child’s future, it’s important to gather information from as many relevant sources as possible: the parents or caregivers, educators, doctors, mental health professionals and others. The information gleaned during these discussions helps in two ways: It informs the conversations I have with the child and it puts their views and preferences in context.

Understanding the child’s preferences

I’m currently representing a 14-year-old boy who’s experiencing such a high degree of pandemic-related anxiety that he doesn’t want to attend school in person. One parent supports his choice; the other is opposed.

My goal, in this case, is to clearly understand the boy’s views and preferences to see how we could craft a plan that keeps his anxiety at bay while making sure he’s getting a quality education and maintaining a social life.

These cases are tough but very rewarding. Any time you can encourage a frightened and anxious child to speak their truth, it’s time well spent.

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