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Baby talk

Sure, babies are cute. But the problems lawyers face when starting a family are not. It’s time for a frank discussion about what it’s like to have a baby in law
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Sure, babies are cute. But the problems lawyers face when starting a family are not. It’s time for a frank discussion about what it’s like to have a baby in law
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Part one: Timing isn’t everything

Illustrations by Emily Taylor

When Sara Cohen turned 29, she thought, Uh-oh. At the time, a decade ago, she was a commercial litigator at a large Bay Street firm and her proverbial biological clock was ticking. Cohen knew she wanted to have children, but she didn’t want to give up her career to do it.

“If you want to be a successful lawyer at a demanding firm, you need to be dedicated and available all the time,” she says. “Unfortunately, the reality is that when you have a family, you have fewer hours to dedicate to your practice. It’s naive to think that won’t affect your career. If you can’t be as dedicated, you may not be given the same quality of files.”

This makes timing a family tricky. Many women in private practice feel they must first make partner, often putting children on hold until their late 30s. Others simply abandon big-firm life. Take Cohen. After she had her first child, in 2010, she left her firm to start D2Law LLP — with her husband, Anatoly Dvorkin — where she practises fertility law (she now has two sons, aged four and seven).

Building up a career before having a child is widespread in the legal profession. “This is understandable,” says Sheena MacAskill, a legal-career coach in Toronto, who practised at McCarthy Tétrault LLP for 13 years. “It makes particular sense today, when it’s more difficult to make partner. I understand why women delay having children in the face of this uncertainty.”

The idea, of course, is that once a woman reaches a certain level of success, she’ll have the authority to take time off work — for maternity leave and to raise a child — without suffering in her career.

But here’s the problem: that isn’t really what happens. As Cohen explains, even though she runs her own firm, she still struggles to fulfill the needs of her clients and simultaneously pay enough attention to her kids. “Being a parent makes you look at things differently. You start asking yourself, ‘Is this valuable?’ and ‘What am I doing with my life?’”

At large firms, women with children still face unconscious bias even if they have a spot in the partnership. “When a male lawyer is absent from the office, it’s assumed he’s dealing with a client matter,” says MacAskill. “When a woman lawyer is absent, it’s assumed she’s dealing with a family issue.” The end result: no matter how strategically women may have timed their pregnancies, they still can’t win.

It’s no secret that some new parents flee private practice for an in-house role, hoping to have a work schedule that allows for more time to be at home. But this solution, too, is not as simple as it sounds.

Consider the story of Andrew Nisker and his wife, Sarah Nisker. Over the past decade, the couple has had three children. And, along the way, they’ve made multiple adjustments to their careers, always trying to strike the right balance between work and family.

Before the birth of their first child — a daughter, in 2009 — Andrew left a large Bay Street firm to work as a prosecutor, where he was able to log slightly fewer hours.

In 2010, the couple had a second daughter. A year later, Sarah left her job at Stikeman Elliott LLP for an in-house gig at Loblaws. “And yet, I worked just as hard, if not harder,” she says. “There are fewer associates or admin staff to help when you work in-house.”

Not all parents want to be home all the time, but the Niskers did. “We wanted one of us to be there for our kids after school,” says Andrew. “That was important to us.”

Shortly after having their third child — a son, in 2013 — they scaled back their careers even further. Sarah switched her role at Loblaws to vice-president of food safety, quality assurance and regulatory affairs, a less-demanding gig than in-house counsel. The couple then moved to Guelph, for the low cost of living. This allowed Andrew to start job sharing and be home three days a week.

Their solution is not for everyone. But it demonstrates that simply “going in-house” won’t solve all your problems. “Parents have to get creative,” says Andrew. “Once you find something that works, it’s totally worth it.”

Part two: When babies don’t come easy

Illustrations by Emily Taylor; Photography by Vicky Lam

When Christine Davies of Goldblatt Partners got married five years ago, she was 29. Her partner, Meaghan, also a lawyer, was three years older. Both women wanted children and they decided that they should each carry one. In 2013, Meaghan gave birth to a daughter.

Unfortunately, when Davies’s turn came, she discovered it wasn’t going to be easy. She underwent several unsuccessful fertility treatments. First, they tried intrauterine insemination (in which sperm are inserted directly into the uterus after ovulation). When that didn’t work, they opted for in vitro fertilization (in which eggs are removed, fertilized, then returned to the uterus).

Though IVF is a scientific marvel, it has its downsides. It involves regular hormone injections, which can be deeply unpleasant. Eventually, the doctor has to perform a trans-vaginal egg retrieval, which can be painful. But, for Davies, the hardest thing might have been coping with the stress and grief of not being able to get pregnant. “I tried to manage my job as best I could,” she says. “Sometimes work even helped because it offered a distraction. The emotional part of fertility treatment was so much harder than the physical.”

In the end, Davies was unable to carry a child. So the couple decided to transfer a fertilized embryo from Davies to Meaghan. They had a second daughter in 2016.

“I know many lawyers keep quiet about infertility because there’s still a lot of stigma around it,” says Davies. “Or they don’t want others in their firm to know they’re trying to start a family.”

Dr. Marjorie Dixon, the founder and medical director of Anova Fertility & Reproductive Health in Toronto, sees the power of stigma in her medical practice. “I often bring women into the clinic after hours so no one will suspect,” she says. “No matter how educated and self-assured these women are, there’s a lot of shame and guilt around infertility and they don’t want anybody to know.”

When Jennifer Hunter, a partner at Lerners LLP, went through fertility treatment, she found it difficult. Seven years ago, when she was 30 and still an associate, she decided to have a child with her husband, Scott Hunter (who’s now a stay-at-home dad, but previously worked as a restaurant manager).

At first, things went well: she got pregnant. But one morning early on in her pregnancy, she started spotting and suspected that she was having a miscarriage. She still went to court that day. “I felt I had to put my personal problems aside,” she says, “and put on a professional face and just do my job.” When court was over, she saw her health-care provider, who confirmed it was a miscarriage.

After that, Hunter had difficulty getting pregnant a second time. By 2014, she had started IVF treatment. “I didn’t know how invasive it would be, both physically and emotionally,” she says. “There are a lot of needles, internal ultrasounds, hormones and physical examinations. Sometimes daily.”

At the office, it was often very difficult to leave for injections. “You kind of hope nobody notices,” she says. “But it’s a hard thing to hide.”

After two rounds of treatment, she got pregnant. And in 2016, she gave birth to a healthy son. “The reward is absolutely worth it,” she says, adding that it was a long, tiring journey. “I don’t think we all need to be talking about infertility all the time, but if more people understand the struggle, then the women and the men going through it might feel a little less lonely.”

Infertility can be particularly stressful for lawyers because they tend to be high achievers who are used to reaching their goals through hard work, explains Dr. Prati A. Sharma, a reproductive endocrinologist in Toronto.

“They come to see me, they’re of reproductive age, they’re healthy and they feel great,” says Sharma. “So they can’t understand why, in this one situation, they’re unable to be successful.”

Part three: Father figures

Illustrations by Emily Taylor; Photography by Vicky Lam

The day you bring a new baby home is the day things get complicated. “Even for lawyers who have help at home — like a nanny or extended family — it can be overwhelming,” says MacAskill. “You have to manage your practice along with all aspects of home life, from medical appointments to school activities.”

Historically, women have had to perform this balancing act alone. But a positive new parenting trend has found its way into the legal profession: an increase in the availability — and acceptance — of paternity leave.

In most of Canada, parents can split up to 35 weeks of leave, on top of 15 weeks that biological mothers can take on their own. (In Quebec, the benefits are more generous.) In Ontario, the government will pay parents taking time off 55 percent of their salary. Every employer then has the option of topping up that government benefit.

When female lawyers take parental leave, most large firms generously top up the government payments. Historically, men were left out of the equation.

But in the past half-decade, most large firms have started to offer new fathers four weeks of paternity leave at full pay. For heterosexual couples, this allows men to take time off alongside their partner, immediately after she has given birth. Davies Ward Phillips & Vineberg LLP is one firm that has put in place such a policy.

“We recognize that becoming a dad is a life-changing event and that child care is a shared responsibility for both parents,” says Frances Mahil, the director of associate and student programs at the firm. “There’s also lots of research to support the fact that, when dads take a leave, they are more involved in the long run. We’ve been excited to see male lawyers take advantage of the policy, as it helps lessen gender imbalances.”

Ryan Elger, a 33-year-old associate at Davies, recently made use of this policy. When his son was born in April, he took his newly allotted four weeks of leave.

“I was really happy when my firm adopted the policy a couple of years ago,” he says. “I was happy to be home following delivery, during my wife’s recovery, to spend time with both of them.”

Meanwhile, Sunil Gurmukh, counsel with the Ontario Human Rights Commission, is in the middle of a 17-week paternity leave, which he took to spend time with his new daughter. With the top-up he’s receiving from his employer, Gurmukh will earn 93 percent of his salary during this period.

Gurmukh’s wife is also on leave from her job at the family’s business. The couple plans to sneak some travel into their time off.

Although Gurmukh does respond to the occasional email and remains engaged with what’s going on at work and in human-rights law, he’s asked colleagues not to copy him on most emails. “I want to make it a full parental leave,” he says. “It gives me time to bond with my daughter and to have an impact on her life. That’s why I took leave in the first place.” He spends entire mornings at the St. Lawrence Market with his daughter, Amaia, and they’re taking music classes at the community centre in his Harbourfront neighbourhood. They also read a lot of books. “I’m definitely not bored,” he says. “She’s at the smiling-and-laughing stage — and I love it.”

Andrew Nisker also sees the social importance of men taking parental leave. He took time off after the birth of each of his children: five months with his first, seven months with his second, eight months with his third. (Since he’s a Crown, his top-up brings him close to his full salary.)

After each birth, Sarah, his wife, took off some time, but didn’t want to wait a whole year before returning to work. “If a family chooses for the woman to go back to work early and have the husband take a leave, it should be okay to do that,” says Andrew. “I don’t see why professional men and women should be treated any differently when it comes to parental leave.”

For her part, Sarah loved that her husband wanted to take as much leave as he did. “It’s so important for both parents to build a strong foundation for their family.”

But there’s another side to this trend. Although a growing number of men have taken parental leave over the past several decades, there’s no guarantee that this will continue. In 2014, according to the latest figures from Statistics Canada, 27.1 percent of recent fathers either claimed or intended to take parental leave. That’s not a bad number, but it’s actually a slight drop from the previous year, where that figure sat at 30.9 percent.

To Gurmukh, that’s a shame. “Parenting is a joint responsibility,” he says. “I hope there is a cultural shift, in which more men are able and willing to take parental leave.”

Precedent Magazine winter issue 2017 coverThis story is from our Winter 2017 Issue.




Illustrations by Emily Taylor; Photography by Vicky Lam