Legal Battles Don’t Need to Spill Blood:

The 11 things the courts want you to know before your family law trial

We often consider the court room a battlefield. Where two opposing parties choose their legal representatives to battle on their behalf. When all is said and done there is a loser and a winner, one party is vilified, while the other is validated. While it may seem that one could justify doing whatever it takes to win their legal battle, the truth is that this could not be further from reality.

For those deciding your case, the judges, they aren’t interested in crowning a winner or penalizing a loser, nor are they interested in the perceived “legal battle”. Their goal is to find the appropriate solution to the family law issues before them. To do this, they take the facts of your case and look at them through the lens of legal precedence in order to find a reasonable outcome. For the judges, the court room is a place of discovery, not a battlefield. A trial case has to be analytical, as it is a pursuit of truth and justice, not a fight that is fueled by emotion. That is why in the case of Alsawwah v Afifi ONSC 2283 (https://afccontario.ca/wp-content/uploads/2020/05/Alsawwah-v-Afifi-5.8.20.pdf) , the Court brought up the following eleven points in the hopes of “lowering the rhetorical temperature” of future trials.

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

How you feel about your spouse, and what you believe to be wrong with them is rarely
relevant to the courts.

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

This is not a political debate. In family court, the judges are often going to make a decision that will affect both parties for a significant period of time. They do not take these decisions lightly and are not swayed by remarks that are not backed up by facts.

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”.

Context. The only context the court is interested in is how your facts relate to your arguments, anything that does not have to do with that relationship is out of 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.

The court is a place of discovery. If you embellish the facts, or manipulate the facts, you are
acting in opposition to the goal of the courts. You and your arguments are seen as one, and your exaggerations and embellishments will colour your arguments.

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

This is specifically for the lawyers. Facts are everything. There is no clearer example that judges are only concerned with the application of facts to the issues than how they desire affidavits to be drafted.

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.

Keep what you say relevant to the issues and the facts. Judges are not interested in
anything more than that.

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.

This is also for the lawyers. Keep in mind that this is not the lawyer’s battle, it’s their client’s.

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

What was it we were saying about facts? Again, legitimate facts win cases.

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.

The courts are to be impartial. If you try to colour the judge’s opinion of someone, you are only changing their perception of you. Don’t give the court a reason to devalue your arguments or facts, it’s all you have in the courtroom.

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.

Honesty, truth, respect. If you have such a desire to win at something, your goal should be to be the most honest, truthful and respectful person in the courtroom. While this won’t win you a case on its own, your demeanour is an extension of your arguments. It gives the court a reason to think twice about what you are presenting. It makes them look closer, listen harder.

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.

Remember, moral high ground is important. Your success in the courtroom has nothing to do with the other party and their actions during the trial. Your success is only on your arguments and facts, and your demeanour in court does affect the judge’s perception of you.

The above is the advice of the courts. They make the final decisions. If you feel like you deserve the best chance in court, you need to make sure you do everything you can to give yourself that chance. Don’t go in ready for battle. Go in ready to help the judges of the court understand why you deserve what you are asking for.

Let’s Work Together