Jul 14, 2020

Court Says: Spouses’ Attacks Have the “Rhetorical Fierceness” Suited to a “Mixed Martial Arts Cage Match”

Alsawwah v. Afifi, 2020 ONSC 2883 (CanLII)

In Alsawwah v. Afifi, the court began its ruling this way:

The famous American trial lawyer, Louis Nizer, once wrote that “[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.” This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart. I recommend it in this case.

The spouses had come to court for a decision on who was to have exclusive possession of their four-bedroom matrimonial home. The mother was currently living in the home, and wished to remain there. Meanwhile the father had rented a one-bedroom apartment, and was living there with their three children. He proposed that he and the children switch residences with the mother, and asked for a court order to this effect.

The court’s task was therefore straightforward: To consider the facts against the established test for exclusive possession of the matrimonial home. This included assessing several factors, including several child-centric ones, that looked at the effect of the requested order from a child’s point of view. The court noted that in the mix of factors that were relevant to the determination of such an order, the children’s best interests are the paramount consideration.

However, in this case the court’s assessment of the factors was hampered by the fact that the parents decided to infuse their evidence with rhetoric that belied their vitriol against each other. The court explained:

[In this case] one party has chosen to attack the other’s character and drag collateral issues into the case with a rhetorical fierceness that one would expect of a mixed martial arts cage match. The other party, who originally desisted from such conduct, felt it necessary to engage, albeit to a lesser degree, in the same advocacy in his reply materials.

After sifting through the warning parents’ mud-slinging, the court ultimately ruled in the father’s favour. It yielded to his argument that the children’s best interests would be served by returning to live in their larger former home, especially in light of the COVID-19 pandemic. The court said:

The children remain in very cramped quarters, offering little privacy and exclusive living space. Only [the daughter] H has her own bedroom. Two of the children sleep on the floor. All of their circumstances are exacerbated by the COVID-19 distancing rules as well as the cancellation of their school and extracurricular activities. Add to that the fact that the father has to work at home, meaning that four people are crowded together, almost 24/7, in cramped quarters.

In contrast, the court described the mother’s ineffective arguments this way:

The mother makes two key arguments of her own. First, she asserts that the father’s motion is not urgent in that the issues that he raises are not new. Second, the father fails to meet the [Family Law Act] test for exclusive possession. Many of her contentions on her second point are rhetorical. She claims that the father is many terrible things: abusive, both physically and economically, a liar, a cheater and a malicious man. Despite conceding two of the father’s key facts in his motion … she asks the court to find that he has no credibility. Under the fig leaf of credibility, she relies on a number of irrelevant collateral arguments.

The court concluded:

While the father has pointed to a number of ways that an order granting him exclusive possession of the home may enhance the children’s best interests, the mother has not offered a single alternative argument. There is no question that the children’s best interests are served with an expeditious return to the matrimonial home.

The decision in Alsawwah v. Afifi is also noteworthy because the court also offered some pointers aimed at the parties, their lawyers, and the entire legal profession in connection with “lowering the rhetorical temperature” in their future filed materials. We’ll cover that aspect of the decision in an upcoming Blog.

For the full text of the decision, see:

Alsawwah v. Afifi, 2020 ONSC 2883

[This post by Russell Alexander first appeared on FamilyLLB.com on July 9, 2020]