Paper Spotlight | Practical Guide to New Ethical Family Law Practice: Lawyers as Parenting Problem-Solvers by Patricia M. Hebert KC and Joanna Waldie

The practice of family law is shifting and along with it the expectations of what a good family law lawyer can and will do. The paper is based on a simple premise:

How do we family law lawyers make ourselves healers rather than gladiators of conflict?

This paper makes the argument that practitioners should “stop ‘winning’ parenting cases – and instead focus on children winning at life.” The authors maintain that, while appropriate mental health supports for clients are critical, “lawyers can play a fundamental role in shaping a client’s response to … transitions [to restructured families] and in coaching and directing the dysfunctional behaviours of their clients to assist them in meeting a goal of healthy parenting relationships.” Because lawyers are often the first, or main, point of contact in a parenting case, an engaged, thoughtful lawyer can be an invaluable resource to a client needing to come to a new, and ideally healthier, understanding of and functioning within changing family structures and parenting dynamics.

To help lawyers develop their skills to be engaged, thoughtful problem solvers of parenting issues, this paper presents core information, processes, and tools that can be used to coach clients and negotiate and resolve parenting cases in healthier ways than has been the historical norm. In each area presented, the authors provide information about the importance of solving the problem as well as some tools and strategies to do so.

This paper is divided into two main parts, which are outlined below:

Part One: Making the Case for the Shift

Here, the paper moves through a brief exploration of the history of family law conflict resolution, Divorce Act amendments, and Law Society obligations. The authors explore the proposition that lawyers have an ethical obligation to their client’s children, noting that a lawyer’s conduct can have life-long implications for the children involved in the case. This section then concludes with a discussion of research on parent and child outcomes post-separation.

Part Two: Putting the Shift into Practice

The authors begin this section by outlining a typical response to a client coming in with a parenting issue:

In the past, a client would have entered your office, explaining that they want primary parenting, and that their former partner has various deficits in parenting. You would collect information to consider what can be persuasively stated in an affidavit and persuasively argued in a case to limit that other party’s parenting time or responsibilities. You would discuss with the client the processes they could use to work toward their desired outcome. You may also discuss your client’s own deficits that could be exploited in litigation, not as a way to assist the client with addressing those deficits, but to create a strategy to reduce the impact of the other party’s attempts to exploit these deficits.

The shift we recommend requires you to pause and build a different path forward for the client.

The authors then outline a general list of steps to take and things to consider for lawyers to make the paradigm shift from a being a participant in an adversarial system to becoming a parenting problem solver. The paper then enumerates 8 topics that family law practitioners should expand their knowledge on to become skilled problem-solving, child-focused advocates:

• Interpersonal violence
• Brain science and adverse childhood experiences
• Parenting plan basics
• Attachment, ages, and stages of development
• Effects of separation on children
• Conflict management
• Interdisciplinary knowledge and referrals
• Hearing from children

Finally, the paper moves through a series of topics in which the authors provide information, processes, and tools that practitioners can use to develop their own problem solving strategies for dealing with parenting issues in a wholistic way, looking at clients’ problems not simply as legal issues but as a constellation of multi-dimensional issues. The paper takes a close look at the the following topics, offering specific, concrete strategies to use for each issue:

• Conflict prevention
• Building resilience
• Client education and preparation
• Proportional conflict resolution strategies
• Various communication problems and approaches
• Parent-child contact problems
• High conflict personalities
• Litigation delays
• Mistrust between parties and counsel
• Use or lack of community and parental resources

Included Appendices

After 50 pages of thought-provoking discussion and exploration of practical strategies practitioners can implement to enhance their practice, the paper then concludes with 7 useful appendices.

Appendix A lists resources for further study. Appendix B provides a checklist and sample for communication strategies. Appendix C enumerates green flags of good co-parenting behaviour, while Appendix D identifies a list of behavioural warning signs regarding alienation. Appendix E highlights the consultation duties counsel has under the Divorce Act. Appendix F provides sample retainer letter clause additions. Finally, Appendix G offers a preventive family lawyering checklist, with information on how to take a preventative approach to family law.

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Where to Access this Paper

This paper provides a wealth of information and practical strategies that you won’t want to miss out on, because when lawyers work with their clients to actively resolve parenting problems, parties can often sort out a parenting plan that fits the needs of their individual families, in both the short and longer term.

So where can you find the paper? In two places.

1. LESA Library

If you have a subscription to the complete LESA Library or the Family Law collection, you already have access to the paper!

You can find it here.

2. On the Shop

This paper is also available for individual purchase on our shop, where it is automatically downloaded to your LESA.org account after purchase. You can purchase it here (along with other papers that were presented at LESA’s Alberta Family Law Institute: Survive, Strive, Thrive program in Calgary on November 28–November 29, 2024).

Just a thought … If you aren’t currently a LESA Library subscriber, but you are interested in purchasing several papers from this program, you may want to consider if a LESA Library subscription is right for you – over time it might be a more cost effective way for you to access the materials you want. Subscribers get automatic access to a suite of practice area specific program papers and precedents (which are continually added to), substantive law practice manuals, and other perks (like 50% of any On-Demand Program purchase).

Curious about the LESA Library? Learn more here.