“Exaggeration is the Enemy of Credibility”: A Lesson from the Ontario Superior Court

In a recent case out of Ontario, Alsawwah v Afifi, 2020 ONSC 2883 (which was heard by the Ontario Superior Court via videoconference) the Court started out by quoting the famous American trial lawyer, Louis Nizer, who once wrote “[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.” The Court noted that “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.”

In this case, the only issue before the Court was the Father’s application for exclusive possession of a matrimonial home. However, the Court noted that “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.”

While the Father’s application was ultimately successful (in large part because the parties’ 3 children were in his primary care), the Court ended the decision by “offering a few words of caution to the parties, their counsel and the profession as whole”, as follows:

Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigations to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.

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 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.