Gary Joseph

Gary Joseph
MacDonald & Partners LLP
Family, Mediation

As a family law expert Gary Joseph leads the family law practice at MacDonald & Partners LLP as a partner and the firm’s chairman.

A certified specialist in family law, Mr. Joseph was called to the Ontario Bar in 1978 and has been a member of the Alberta Bar since 1985.

Reported in over 200 family law decisions at all court levels in Ontario and Alberta, Mr. Joseph has also appeared as counsel at the Supreme Court of Canada.

Mr. Joseph is a past family law instructor of the Ontario Bar Admission course and founding lecturer at the Family Information Session program of the Superior Court of Justice.

A prolific writer, Mr. Joseph authored “Handling a Family Law Matter in Ontario,” and the “Family Law Litigation Handbook.” He co-authored “Family Law Arbitration in Canada,” and has penned numerous articles on family law in various professional and public media.

Gary Joseph Posts

Exclusive possession granted in "troubling" ruling

“We were disappointed,” Toronto family lawyer Gary Joseph says of Justice Heather McGee’s decision. “We didn’t think that the text messages should form the basis for an exclusive possession order.” Read more

Distinction between two family law statutes important

Support claims for children of married couples may be dealt with under the Divorce Act or the Family Law Act, while children born of unmarried couples have their rights to child support determined under the Family Law Act alone, Toronto family lawyer Gary Joseph writes in Lawyers Weekly. Read Lawyers Weekly Read more

Judges should ... judge

By Gary Joseph. In Canada, judges are appointed. We have rejected the system fairly prevalent in the United States for the election of judges. Judges at all levels of the courts in Canada apply to be appointed and are subject to a rigorous level of review and (some) political maneuvering (this more so at the federal level). Those who seek such appointments are applying to be independent adjudicators of societal disputes whether criminal, civil or family law. Most (but not all) have legal backgrounds that prepare them for this task (that of judging).Members of the public are familiar with the traditional role of the judge. He/she hears evidence and/or submissions from dueling parties and then decides cases as presented. Judges are the present day Solomon’s of our society. I suggest, however, that the public would be somewhat surprised to learn that, at least in family law, this is not what judges do for the most part. Family law rules and procedures across the country have fundamentally altered the role of the judge such that adjudication is secondary to negotiation/mediation.In the family law context, most of the time in court leading up to a trial (only experienced if all else fails) is spent in informal process involving discussions, meetings, negotiation and mediating with the assistance of the judge. The title of the process differs across the country from case conference, settlement conference to judicial mediation, but the process is at all times similar; the judge is engaged in a settlement type experience involving the parties and their counsel seeking resolution on a consensual manner.Many judges appointed today bring skills to the bench that are helpful to this type of process but most do not. There is very little specific training before one starts the task of “judging.” Further, there has grown a large group of legal practitioners who are trained mediators. Judges who are experienced in adjudication often are neither trained nor skilled in what is a most different process. This can result in unsuccessful or worse (in my view) repeated court attendances for unnecessary and unhelpful conferences aimed at settlement. The failed process can frustrate clients and lawyers alike and can result in a client depleting his/her litigation fund and thus becoming one of the many “self reps” (those acting as their own lawyers) in the court system (a very undesirable result for client and court).I say. “Let judges judge!” Let’s approach the new more meditative world of family law as follows:1. Those cases that result in litigation should be quickly triaged;2. High conflict cases should be streamed to full case management with experienced family law judges who can move the matter quickly forward to an adjudicated resolution (with a family law judge judging);3. Those cases that appear open to resolution within the court system should be streamed to a dispute resolution process staffed by individuals specifically trained in ADR (alternative dispute resolution), techniques not judging.By taking this approach the results would be immediate:1. High conflict cases would be adjudicated sooner. Judges’ time, presently at a premium, would be now exclusively devoted to judging (the task they applied to do);2. Less conflictual cases would be engaged by trained (and likely) less expensive specialists in task-focused resolution;3. Clients would be better able to manage their litigation budgets without the necessity of wasting countless dollars in conferences that achieve little;4. There would thus be less “self reps” in the system;5. There would be more settlements of cases within the court system.Let me conclude by noting that these thoughts are not meant as a criticism of the judiciary, many of whom perform their present tasks within family law admirably. More so, I seek a system of trained specialists available to ease the pain of the court process, make it quicker and less expensive.Believe it or not, this is coming from a lawyer who makes his living within the current system; this would benefit counsel too! Read more

Eric v. Lola: expect far-reaching implications for spousal support

By Gary Joseph. The implications of the decision are likely to be Canada-wide, notwithstanding that the case arises under the unique anomalies of Quebec family law.In all provinces of Canada, other than Quebec, legislation provides for spousal support claims for common law provinces.While legislation differs from province to province, the consistency of remedy exists. Most partners, upon the breakup of a common law relationship, can claim and receive statutorily mandated spousal support. However, Quebec is the exception.Notwithstanding (or perhaps because of) the fact that the majority of unions in Quebec are common law rather than marital, no legislation exists to permit spousal support claims in that province. Hence, Lola (or whatever her real name is) filed her claim for spousal support together with a claim that the denial of same by reason of the absence of legislation constituted a breach of the equality provisions of the Charter of Rights and Freedoms (section 15).This case has wound its way through the trial process in the Quebec Superior Court and the appeal process in the Quebec Court of Appeal. The four judges who have heard the case (one in Superior Court and three in the Quebec Court of Appeal) have differing views on the constitutionality of the denial of spousal support. The problem (or solution) has now been laid at the feet of the nine Supreme Court of Canada judges.The determination of this case will test the court’s resolve in applying the ancient doctrine of stare decisis (put simply, the requirement to respect prior decisions of the court).In a property decision the Supreme Court, a number of years ago, upheld the constitutionality of property laws denying property claims to common law spouses. In that case, the court emphasized the need for respecting the choices couples make in marrying or not.Will the court apply the same reasoning to spousal support claims arising from such circumstances? Will the court be swayed by the choice issue or will it see the issue as somewhat different when assessing need of a former partner to be supported financially after breakdown?Time will tell, but regardless of the ultimate decision, which may appear at first blush to be of interest only to Quebec residents, and within that sample, to common law couples only, the ruling will have far-reaching implications.The Supreme Court will be forced by the nature of the appeal to explore the law of spousal support at large. In measuring whether there has been a breach of equality rights under s. 15 of the Charter, the entire nature of spousal support must be considered.Within this analysis there will be nuggets of guidance to claimants of spousal support or common law spousal support alike, to Quebec couples and couples across Canada. Given that spousal support claims represent one of the principal flash points in high conflict breakups across this country, lawyers and separating spouses should pay close attention.Stand by, more to come once the decision is released. Read more

Marriage and divorce attitudes: tidal wave of change

We are marrying less. Our divorce rate continues to climb (notwithstanding Statistics Canada’s claims to the contrary). What’s going on? Read more