A Word or Two about Rhetorical Excess in Family Litigation

Picture the following scenario: After a blistering argument between Mr. and Mrs. A. resulting in assault charges against Mr. A. and an order barring him from being within 500 metres of his wife and the family home, the children refuse to remain living with their mother, and the three of them, a girl of 13 and her brothers, ages 15 and 8, move in with their father in his one-bedroom basement apartment. Father and sons sleep on makeshift beds on the living room floor, with their sister in the bedroom. COVID has shut down the schools and father works from home. Father continues to pay all the expenses for the four-bedroom family home and his rental accommodation but realizes that the children are suffering from being cramped in his small apartment. The obvious solution is for father and children to move back into the family home and for mother to move out. Father has even arranged with the landlord to have mother take over his apartment, if she wishes.

The best interests of the children demand this remedy, but mother refuses and the court intervenes. Alsawwah v. Afifi 2020 ONSC 2883 provides the backdrop for lessons for family law counsel who fail to “see the forest for the trees” and continue to believe that aggressive advocacy is beneficial fo their clients.

Justice Marvin Kurz begins his tutorial with a quote from legendary American trial counsel Louis Nizer, who once said, “When a man points a finger at someone else, he should remember that four of his fingers are pointing at himself,” an aphorism that highlights the ubiquity of human foible that Justice Kurz suggests “aggressive” family law counsel “should take to heart.”

The discrete application brought by Mr. A. is for exclusive possession of the family home and nothing more. What Justice Kurz identified was affidavit material that was “unnecessary, excessive,distracting and unhelpful,” primarily from Mrs. A., but as is often the case, the applicant chose to respond in a similar fashion.

The facts reveal that the children’s departure from the family home was precipitated by a physical altercation between mother and her daughter, an event that led to the 13-year-old wielding a knife and threatening to commit suicide. Mother characterized the event in terms of her victimization and blamed the father as instigator of her daughter’s behaviour, claiming that he incited his daughter to violence.

The court was unable to sort out the precise truth of the parties’ differing versions of the event but noted that portions of the mother’s “explanation” lacked credibility and her silence with regards to her daughter’s suicide attempt was problematic.

Mrs. A. argued that the application was not “urgent” as required during COVID, and that the applicant failed to prove that a return to the family home was in the children’s best interests. She also pointed out the impact of the financial disparity between her and her spouse.

However, her most intense and incessant focus was on her husband’s “abuse and character,” albeit offering little detailed evidence of the alleged abuse, but heaping on pejorative allegations describing his conduct as “conniving (twice), malicious (eight times), cruel (four times), acting in bad faith (six times), with hidden motives (four times).” 

But there was more. She admitted certain facts alleged by the applicant but referred to her husband’s material as “fabricated” seventeen different times, including being “entirely fabricated.”She went on to state that he has “fabricated every statement in his motion materials to maliciousl ygain exclusive possession of the home and financially drain and abuse me.” Her denial of the father’s recitation of facts is “vehement.”

Justice Kurz remarked that the mother’s use of hyperbolic language to describe her husband so demonized him that “it is hard to see the objective truth hiding behind the thick gauze of denigration,” a fact that diminishes her credibility. Her allegations of financial abuse were quickly dispatched by the judge.

As may now be apparent to all, exclusive possession was granted to the father with an order that he provide certain funds to Mrs. A. to enable her to make the move. But the important takeaways from this judgment eclipse the trite law of exclusive occupancy.

The sage Justice Kurz offers the following “to the parties, their counsel, and the profession as a whole.” Family litigation is far too corrosive of once-loving relationships and far too soul-destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. His advice includes the following:

The role of family law lawyers is complicated and requires a balancing act of duties towards the client, the administration of justice and even the child before the court. Lawyers need to be rational counsel and not flame-throwing propagandists;

Evidence regarding moral failings is rarely relevant to the court;

A partner can be a terrible spouse, but a good parent;

Affidavits that read as argument are not persuasive and speak to careless drafting;

A lawyer’s letter, unless it contains an admission, is not evidence of anything, except that it was sent;

Facts win cases, not innuendo or bald allegations;

Relevance matters, collateral issues are irrelevant and counterproductive;

Counsel should always take the “moral high ground.”

To this I might add a few of my own pet peeves, including counsel who bring a motion for a discrete order, but refer in their application to every affidavit filed by their client, often numbering in excess of a dozen. A waste of time for counsel and the court, but no doubt a contribution to the firm’s photocopy lease. Similarly, I query why counsel would cite 20 cases when five or less covers it all.

Kudos to Justice Kurz for this treatise on advocacy for family law counsel.

Georgialee A. Lang is a lawyer and arbitrator in Vancouver and Kelowna, B.C. Lang has practised family law for 31 years, recently focusing primarily on arbitration and appellate litigation. Lang is a writer, speaker and media commentator whose publications range from the Huffington Post to the National Post and  The Lawyer’s Daily. For fun she pens a blog (lawdiva.wordpress.com). Connect with her at georgialeelang.com or on TwitterThis article was originally published by The Lawyers Daily a division of Lexis-Nexis at thelawyersdaily.ca

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