How not to behave during your divorce

Estate law is the ugliest, nastiest area of legal practice. The cupidity and grasping malevo­lence that often arise before the corpse is cold can make a mis­anthrope of a saint.

Family law, how­ever, takes a close second. Divorce in par­ticu­lar can bring out far more hostility, selfish­ness, bitter­ness, guile, and out­right crimi­nality than one would expect from the often lavish wed­ding ceremony and the solemn promise lasting «till death do us part».

Fortunately for prospective liti­gants and for the legal pro­fes­sion, the Honour­able Marvin Kurz of the Ontario Superior Court of Justice in his recent deci­sion Alsawwah v Afifi, 2020 ONSC 2883 (at para 108) offered eleven sound obser­va­tions on good conduct in court. I endorse every one of them and urge you to study them all if you find your­self em­broiled in divorce pro­ceed­ings. Here they are, repro­duced in full:

1. Evidence regarding a former spouse’s moral fail­ings is rarely relevant to the issues before the court.

2. Nor are we swayed by rheto­ric against the other party that verges on agitprop.

3. Our deci­sions are not guided by con­cerns of mari­tal fidelity. A (non-abusive) part­ner can be a terri­ble spouse but a good parent. Every­one is sup­posed to know this, but all too often I see liti­gants raise these issues for “context”.

4. Exaggeration is the enemy of credi­bility. As it is often said, one never gets a second chance to make a first im­pres­sion. If that im­pres­sion, arising from a parties’ materi­als or argu­ment, is one of embel­lish­ment, that im­pres­sion will colour every­thing that ema­nates from that party or their counsel.

5. Affidavits that read as argu­ment rather than a recita­tion of facts are not per­sua­sive. They speak to careless drafting.

6. Similarly, hearsay allega­tions against the other side which fail to com­ply with r. 14(18) or (19) are generally ignored, whether judges feel it neces­sary to explicitly say so or not.

7. A lawyer’s letter, what­ever it says, unless it con­tains an admis­sion, is not evi­dence of any­thing except the fact that it was sent. The fact that a lawyer makes allega­tions against the other side in a letter is usu­ally of no evi­den­tiary value.

8. Facts win cases. A pebble of proof is worth a moun­tain of innu­endo or bald allegation.

9. Relevance matters. If the court is deal­ing with, say an issue regard­ing parent­ing, allega­tions of a party’s failures regard­ing col­lateral issues, say their stingi­ness or the paucity of their finan­cial dis­clo­sure, are irrele­vant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offend­ing spouse. Rather, they demon­strate that the party or their coun­sel is unable to focus on the issue at hand. Often those materi­als back­fire lead­ing the court to place greater trust in the other side.

10. One key to success in family law as in other areas of law is the race to the moral high ground. Courts ap­pre­ciate those parties and coun­sel who demon­strate their com­mit­ment to that high ground in both the fram­ing and presen­ta­tion of their case.

11. While dealing with that moral high ground, many capa­ble coun­sel advise their clients against “me-too” ism. One side’s failure to obey a court order or pro­duce neces­sary dis­clo­sure does not give licence to the other side to do the same. Just be­cause the materi­als of one side are incen­di­ary or pro­lix, that does not mean that the other side is re­quired to respond in kind. Judges are usu­ally aware when a party has crossed the line. Show­ing that you or your client does not do the same is both the ethi­cal and the smart thing to do.

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