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Rhetorical Excess in Family Litigation

Kasey Anderson

It’s hard to imagine any other area of law which evokes more emotion and passion in its litigants than family law. Unfortunately, such emotion can often manifest itself if the most personal and offensive of attacks upon character, which not only go a long way to irreparably damaging the relationship between the parties (who are often also co-parents) but can also often hinder an individual’s case, muddying the facts and making it difficult for the lawyers or mediators to facilitate a settlement or for an arbitrator or judge to make a decision.

In the Ontario case of Alsawwah v Afifi, 2020 ONSC 2883Justice Kurz spoke at length about what he termed “rhetorical excess” in family law litigation, or the feeling by litigants that “they can leave no pejorative stone or personal attack untilled when it comes to their once loved one.”

It is difficult for litigants, and their lawyers, to find and stay behind the line of what constitutes necessary evidence about the other party that is relevant for the Court’s determination, and what constitutes an attack compromising their own case. When making such a determination, it is important to ask one’s self the following questions:

  1. Does the tone of my materials compromise my credibility? Do I come across as angry/emotional/spiteful such that a trier of fact may question my ability to fairly recount the facts?
  2. Is what I’m saying truly relevant to the issue at hand? For example, is my former partner’s conduct towards me really relevant to the determination of a parenting (or property, or support) issue?
  3. Does my written evidence come off as argument rather than a recounting of facts?

This is not to say all evidence has to be neutralized, in fact, sometimes bad character or conduct can be an issue of central importance for a Court. However, a thoughtful and objective approach (especially when faced with a high-emotion, high-conflict approach), is typically going to be received better by a Court and go a long way to establishing credibility.

2021-01-27T15:09:53+00:00February 2, 2021|Family Law|
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