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  • Writer's pictureJared Davies, Lawyer

An aggressive family lawyer Ottawa. What to consider.





Overview


Many people want an extremely aggressive family lawyer Ottawa on their case. Instead, they should seek out a passionate and assertive family lawyer. The reason for this is simple and can be found in cases such as Castro v Garcia, 2016 ONSC 4771. If a Judge perceives you as too aggressive, you will likely have negative costs consequences as a result (even if you win).


An Assertive Family Lawyer


What is a desirable alternative to an aggressive family lawyer Ottawa? Assertiveness. An assertive family lawyer is a strategic and intelligent lawyer who always maintains their client’s long term interests as their ultimate goal. Assertive family lawyers state their opinions and make themselves heard while remaining respectful of others, including the Judge and the opposing party. An assertive family lawyer stands unwaveringly for your rights with clear and resounding advocacy, refuses to be pushed around or bend under pressure especially during proceedings such as cross-examination, strategically weighs the costs and benefits to employ the most effective conflict resolution tools, and fearlessly engages in litigation when absolutely necessary.


With a strong stance, assertive family lawyers navigate conflict resolution by carefully assessing the benefits and costs at hand. Whether through skillful negotiation, strategic mediation, or when warranted, calculated litigation, they adapt their approach to the distinctive circumstances of each client, crafting customized solutions for every challenge.


The Risk with an Aggressive Family Lawyer Ottawa


An aggressive family lawyer Ottawa? Aggression does not go over well with the court. Nothing speaks more loudly than Justice Tzimas' comments in Castro v Garcia in response to aggressive litigation: "the Applicant would have obtained the same outcomes with submissions that were succinct and less prejudicial." There is nothing wrong with being assertive and confident in one's position. There is nothing wrong with pursuing strong and assertive cross-examination against the opposing party. These traits can be extremely positive in getting the facts of a case. However, if a litigant is unreasonable in their position, they start to lose credibility before the court.

Castro v Garcia

Not only do unreasonable positions compromise the chance of success, the manner in which the case resolves is a factor to consider in costs awards. This is where being an aggressive family lawyer Ottawa may have drawbacks. The court in Castro v. Garcia, 2016 ONSC 4771 made the following findings in relation to one of the litigants having been too aggressive. Here is a glimpse of some of the relevant findings that the Judge made in the case:


  1. The aggressive thrust in her allegations (legal and submissions) was not constructive and likely exacerbated the conflict between the parties.

  2. The Applicant's tendency to overstate aspects of the Respondent's behaviour or to highlight certain facts about his background that were marginally relevant at best, were distracting and likely entrenched the Respondent in his resistance.

  3. It also fed into the Respondent's suspicions over the Applicant's real motivations to marginalize him from the children's lives.

  4. In my view, there was no justification for the Applicant's aggressive approach.

  5. The Applicant would have obtained the same outcomes with submissions that were succinct and less prejudicial. (i.e. keep this in mind when looking for an aggressive family lawyer Ottawa).

  6. The Applicant's use of pronounced and provocative adjectives undermined any possible disposition towards resolution. The task was left to this court to diffuse the situation and to promote a gradual path towards a meaningful access arrangement between the Respondent and the children.

  7. My concern for this was all the more pronounced in that the Applicant was fully aware of the Respondent's anger management issues. Some consideration should have been given to the question of whether the Respondent would have been more or less receptive to an aggressive approach on the children's welfare or whether something more conciliatory (and less expensive) would work.

  8. Had I not had the benefit of reviewing the OCL report but were limited only to the Applicant's submissions, I would have been left with a far more severe and compromised appreciation of the dynamics between the Respondent and his children.

  9. In the result, for the purposes of making a costs award, I am unable to conclude that the Applicant's conduct costs on a full indemnity basis.

  10. Much as the Respondent contributed to the escalation of legal costs in his resistance to the Applicant's motion, so did the Applicant.

  11. In keeping with my concerns over the Applicant's aggressive approach, in these circumstances, the Applicant should have proceeded on an expedited basis to vary the access terms. The net outcome of exceptionally restricted access terms would have had the same effect as a restraining order, but much less acrimony and with prospects of a conciliatory resolution of a very difficult situation.


In effect, the court says that the Applicant was too aggressive. A litigant would get the same result without an aggressive family lawyer Ottawa. The Applicant was not able to recoup their legal costs on a full recovery basis.


Conclusion


An aggressive family lawyer Ottawa can have unexpected cons that may reflect poorly in costs awards. They your credibility. The Judge will likely lose focus. The Judge will likely lose sight of the facts or arguments of your case. It is better to be intelligent and assertive in your position. Check out my recent post on the best family lawyer in Ottawa.



Comments


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