James Colin MacDonald: An Appreciation 

Jim MacDonald died on September 19, 2019 at his summer home on Prince Edward Island. His passing has caused me to reflect on his career and on his importance to the development of family law in Canada.

Jim graduated as a lawyer in British Columbia practising there for a short time before moving to Ontario in the 1960’s. He met Lee Ferrier; they decided to practise law together, though unsure, in the early days, what type of practice they should develop. At that time, there were few specialist law firms. A chance remark from Joe Pomerant, who was a young lawyer practising criminal law, sent them in a direction that they would continue – Jim for the rest of his professional life. Joe pointed out that there were no family law specialists in Toronto. He thought that consideration should be given to that area of the law. True, at that time there were a handful of lawyers who made a living doing divorces, and others who took on family cases as part of a more general litigation practice. However, there was no Toronto firm, in the mid-1960’s, specializing in the field.

Once Jim and Lee formed MacDonald and Ferrier word soon spread through the legal profession that these two most capable lawyers were willing to represent family law clients. M & F was professionally successful right from the start. The success, however, did not come without a lot of thought about how the practice would develop. 

Jim took the lead in developing and fostering family law education through writing and teaching. In 1967, when I met him, Jim was conducting a study for the Court on young offenders (then called juvenile delinquents). I was working for Jim Felstiner at 311 Jarvis St. By 1968 Jim and Lee were the “go to” lawyers in the field, chosen to deliver a brief to a Parliamentary Standing Committee on divorce reform. This marked their early contribution to reforms in the family law field.

Jim also began to write Divorce Law and Practice in Canada, a running service in book form, that is still considered a leading family law resource in our country. By the early ’70’s Jim and Lee had hired David Main, Emile Kruzick and me. I mention these names because all of us, including Lee, were appointed to the Bench. Lee became Treasurer of the Law Society. None of this would have been possible without Jim’s leadership, guidance and friendship. Jim thought “outside the box”, coming up with ideas at a “mile a minute” pace. One example was his hiring of a social worker who had been employed at the then “Official Guardian’s” Office. This employee was hired to ensure that M & F, as a firm, was doing the right thing and doing it in the right way in custody cases.

Jim was a born legal educator. In the early 1970’s he was named Director of the Family Law Section of the Bar Admission Course, and, a short time later, Director of the Bar Admission Course. He developed the course materials on family law; he lectured widely and was involved in just about every important family law educational event in Canada. He gave freely of his time, while leading the firm and dealing with a busy and successful client caseload. He worked late in the evening, on weekends and even during holiday time. He did all this without complaint. In addition to lecturing and writing, Jim developed most of the family law precedents, such as domestic contracts, pleadings and retainer letters, that were in use during his career and today.  Words were important to Jim. Communication had to be precise and understandable. He hated fuzzy thinking and disorganized presentations be they in pleadings or in court.

In the 1970’s, through his work with the AFCC (Association of Family and Conciliation Courts), Jim met an American lawyer named Jim Coogler who was one of the first family lawyers to embrace mediation. In fact, he wrote a book, Structured Mediation, which, I think, changed Jim MacDonald’s entire approach to family law. He became convinced that litigation was not only a last resort but that it should happen only in extreme cases. He did not like what litigation did to families; he did not like what it did to some lawyers. While he appreciated good lawyering, there was little room in his heart or mind for needless aggression.  As a result, Jim became the leading proponent of collaborative law in Ontario. He organized committees, lectures, precedents and made his mark in this specific and important area of the law.

Jim also took a leadership role in technology for family lawyers. With the arrival of the first word-processor, he was off to the races with electronic, time-saving devices. He lectured throughout Ontario on the use of computers in family law.

If all these accomplishments were not sufficient, Jim also trained countless younger lawyers. This was his great pleasure and his legacy. He loved teaching; he loved interacting with younger colleagues; he reveled in their success. 

He was socially formal and paid attention to good manners as he used them to put people at ease. However, he was anything but formal when developing his vision of the way family law should be practised. By the 1990’s Jim still had enough energy to form and lead the law firm MacDonald and Partners. That firm has attracted very able lawyers and has continued Jim’s tradition of teaching and writing.

For me, however, Jim’s great achievement was moving family law, as practised today, a far, far distance from the way it was practised in the early 1970’s, when it was very adversarial. His wish was that family law, when practised properly, would “do no harm”.

Jim’s contribution to family law in Canada was enormous.

Recently we also lost Dena Moyel who died after a long struggle with cancer. She had a wonderful career with the Children’s Lawyer, serving Ontario’s children. She was well-regarded by the Bar and most helpful to the judiciary when called upon to assist.

Like Jim, she will be missed.