Jul 28, 2020

“Exaggeration is the Enemy of Credibility”: Court Offers Tips on “Lowering the Rhetorical Temperature” Between Family Litigants

Alsawwah v. Afifi, 2020 ONSC 2883 (CanLII)

As we noted in our recent Blog about a case called Alsawwah v. Afifi , the court dealt with two warring spouses who attacked each other with it called a “rhetorical fierceness that one would expect of a mixed martial arts cage match.”

As an add-on to the court’s decision-making on the spouses’ substantive dispute over who would get exclusive possession of their matrimonial home, the court offered some practical advice, not only for these parties, but for all litigants and the entire legal profession. The court said:

In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:

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 … 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.

None of these comments should be taken as a comment on present counsel. Nor should they be seen to minimize the kind of resolute advocacy that the court has come to expect from so many of its best lawyers. That type of advocacy is often necessary and valued. But even then, rhetorical excess is the enemy of good advocacy.

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 23, 2020]