Justice: Sometimes poetic, sometimes not so much | Ken Hill

Ken Hill

Progress generally benefits the majority, but it can catch some people high and dry, leading to injustice in some cases. When I studied law, the tradition at least in the larger firms was that younger lawyers did the hard work while the senior partners, who had put in their years at the grindstone, took clients out to lunch and kept the majority of the money earned by the firm. Gradually a new approach came to hold sway; i.e., that compensation should be largely based on one’s current billings. I am sure some people who were just arriving at the senior partner status at that time felt, with some justification, that they were being robbed of their long-awaited reward.

Similarly in the area of family law, dependent spouses (almost always the wife) used to expect alimony for life upon dissolution of a marriage. In the late ’70s and early ’80s, the prevailing legal theory of spousal support evolved to one of “economic rehabilitation” rather than a “meal ticket for life.” That change can be fairly seen as progressive, but I had a case where, you might agree with me, the new paradigm could have worked an injustice.

My client, Judy, was a pleasant modest lady who had led a traditional life, staying at home and raising the couple’s six children while the husband advanced his career with a major international corporation. He was frequently transferred and Judy and the kids moved many times in his wake, as he climbed the corporate ladder. When she came to me, she and her brood were stranded on a rural property, where the corporate titan had left her — cue drumroll — for a younger woman. He was providing very little support and times were truly tough for his family.

In those days, even more than now, it was challenging for a middle-aged woman with no work experience outside the home to develop a career. We felt it was important to try to get indefinite spousal support. It looked like we were facing an uphill battle, given the new theory of support but also because our judge at trial had recently gone through a divorce of his own. However, the facts were on our side and I thoroughly enjoyed going through his credit card statements when cross-examining our “father of the year” candidate. It seems that while Judy and the kids were stuck in the countryside with no working washing machine or motor vehicle, the titan of industry had been doing a fair bit of golfing and dining at expensive restaurants. I’m happy to report that Judy was awarded support that was not time limited.

Have you ever noticed how clients often choose lawyers that resemble themselves? Judy’s husband initially had counsel from a prominent Toronto firm, but at his girlfriend’s suggestion he switched to a young sole practitioner before trial. The new counsel, Bob, was a very self-assured fellow with an interesting take on the practice of law. In one of our chats during the course of the trial he proudly told me that, in order to effectively limit his exposure to liability for professional negligence, he had arranged to be sued by friends and relatives and allowed them to get judgments against him. His theory was that if anyone with a real claim should ever get a judgment against him, any recovery by the sheriff would mostly be distributed among his non-arm’s length “creditors” Pretty sharp, eh?

He also bridled against what he saw as the over-regulation of the profession here in Canada and soon after our trial, he headed off for the bright lights and big contingency fees of New York City. I thought I had heard the last of him but he called me up a couple of years later. It seems that he had tired of the Big Apple and was applying to be readmitted to the bar in Ontario. He apparently had some black marks on his record here and had the chutzpah to ask me to vouch for his integrity to the law society. I deduced that he must not have had many others to turn to for such an endorsement, but nevertheless, I politely and cheerfully declined.

Ken Hill is happily retired from just about 40 years of litigation practice in Newmarket, Ont.

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