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Martha McCarthy & Company

Originally published in The Lawyers Weekly

Two months after she opened Martha McCarthy & Company in March 2007, Martha McCarthy earned the 2007 Ontario Bar Association Award for Excellence in Family Law.

The award didn’t surprise people who follow her career. McCarthy has been at the forefront of family law equality cases for fifteen years. She is perhaps best known for her role as counsel in the case that won gays and lesbians the freedom to marry in Canada.

Back in law school, McCarthy didn’t see family law as her calling. “My father is a real estate broker,” she said. “I always wanted to do real estate law, so I went to a Bay Street firm as a summer student in the real estate department.”

“That summer, a lawyer named Malcolm Kronby was doing a case called Georg and Hassanali, a constructive trust claim by the long-time cohabiting partner of a wealthy African count,” McCarthy recalled. “Malcolm asked me to assist. I sorted through love letters and work orders. I organized evidence about contributions that the plaintiff said she had made.”

“And I said ‘Now THIS is law! THIS is interesting.”

After articling, being called to the bar in 1991 and winning the Silver Medal and the Family Law and Advocacy Prizes, McCarthy was hired back as a junior and participated in six trials during her first year.

Kronby pushed McCarthy even further. “Malcolm is an old-style barrister in his views on how lawyers should be trained,” McCarthy explained.

“I’d be on some trial with him and say, ‘OK, this next witness, you need to cover this point and don’t forget that,’ and he would turn to me and say ‘He’s your witness. Go.’”

“I was a first-year, scared out of my mind, and there I was, cross-examining some witness. It was really incredible training.”

Towards the end of her first year of practice, a client entered her office who would become M. of M. v. H., the case that would lead to equality for unmarried gay and lesbian couples in Canada.

Up to that point, family law practices dealt overwhelmingly with heterosexual couples. “When she left, I asked a student to bring me a copy of the Charter and the leading case on equality. I didn’t have a clue,” McCarthy said. “And eight years later I went to the Supreme Court of Canada.”

During those eight years, McCarthy steered an initial victory through various courts of appeal. After M v H, McCarthy commenced Halpern, the first equal marriage case in Ontario.

Her work inside the courtroom and out toppled most of the dominoes. Victories in Ontario, Quebec and the Yukon, plus a Reference before the Supreme Court, led to the 2004 legalization of gay marriage coast to coast.

In McCarthy’s view, at least two key dominoes remain standing. Certain important parenting issues still plague gays and lesbians, who also do not yet benefit from the principle of spousal privilege.

But overall, McCarthy eliminated her specialty. “There was a time when I handled a greater proportion of gay and lesbian relationship breakdown cases than many of my colleagues,” she said. “It was more specialized work and I was one of the few people known to have experience with the issues.”

Today, “the rules are the same for everybody – gay or straight,” McCarthy said. “All family lawyers can handle gay and lesbian cases.”

McCarthy doesn’t point to any specific factors that prompted her to strike out on her own. “It was time for me to run my own show,” she said.

“There wasn’t an event, or a day that I decided. I had great support from my partners at Epstein Cole. At the goodbye reception they held, I said ‘I’m just the kid who grew up and moved out of the house. I’m still going to come home and do my laundry.’”

Elements of her practice would please her mentor. For instance, during a trial this past summer, one of her three first-year associates was coaching her on what she needed to know about cross-examining an expert witness when McCarthy said, “Go. It’s up to you.” The associate said, “Pardon?” McCarthy said, “Go. He’s your witness.”

Kronby might also approve of the heritage building she chose for her office, but McCarthy likely wasn’t thinking of him when she commissioned the hot pink logo on her office wall. “I wanted to shake things up,” she said.