- ‘Misguided campaign’ is being waged to outlaw parental alienation - January 31, 2024
- There is no moral equivalency between Israel and Hamas - November 14, 2023
- Why the Gaza war matters to the legal profession and law schools - November 7, 2023
By Paul Russell, LegalMatters Staff • A recent Ontario Superior Court of Justice judgment is a good reminder for all family lawyers that “facts win cases,” not emotionally charged rhetoric, says Toronto family lawyer Gene C. Colman.
“This case is making waves, as it should. Justice Marvin J. Kurz has a great way of expressing his thoughts in almost a poetic way that really drives his message home,” says Colman, principal of the Gene C. Colman Family Law Centre.
According to court documents, a couple had three children and separated after a 14-year marriage when police charged the father with assault. His bail terms prevented him from residing in or coming within 500 metres of the matrimonial home, though that was later amended to allow him to return if he was granted exclusive possession.
The children initially lived with the mother, then moved into the father’s one-bedroom basement apartment following a serious incident between the mother and one of the children, including a suicide attempt by her daughter.
‘Rhetorical fierceness’
The father was given exclusive possession of the couple’s matrimonial home, with Kurz noting the mother had needlessly chosen to “attack the [father’s] character and drag collateral issues into the case with a rhetorical fierceness that one would expect of a mixed martial arts cage match” in affidavits the mother’s counsel presented.
“Much of the oratory in the materials before me … is unnecessary, excessive, distracting, and unhelpful to the resolution of the sole issue in this motion. I offer a few directions below in the hope of assisting the parties, their counsel and the profession,” he writes.
Kurz notes the mother claims “the father is many terrible things: abusive, both physically and economically, a liar, a cheater and a malicious man. Despite [the] suicide attempt in her care and her acquiescence to the father’s subsequent exclusive parenting of the children, 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.”
Colman tells LegalMattersCanada.ca that Kurz identified a recurring problem in family law matters, where counsel makes arguments that are not relevant.
Name-calling doesn’t help
“Kurz is reminding lawyers not to go after collateral issues, but focus on the main issues,” he explains. “If you have a point to make, make it.”
According to court documents, the mother referred to the father’s “character” four times in her affidavit, and called him “conniving” twice, “cruel” four times and “malicious” eight times. She also described him as acting in “bad faith” six times and claimed he had “hidden motives” four times.
“She just calls him names, without providing any evidence to support it,” says Colman. “His character makes no difference. But if you are going to argue that it does, her counsel needs to provide material facts that support the allegation.”
Court documents show the women claimed the father “fabricated every statement in his motion materials in order to maliciously gain exclusive possession of the home and financially drain and abuse me.”
“Justice Kurz pointed out that she did not mention or give her side of the story about the violence between herself and the child, which precipitated this exclusive possession motion,” says Colman. “She cannot say his evidence is fabricated when she does not provide any evidence herself. Her silence speaks louder than words.”
Inadmissible documents
Kurz rebuked the women’s counsel for alleged fabrications in the father’s case conference briefs since they are not official court documents and should not be discussed at trial.
“To start relitigating the case conference briefs in your affidavit material shows exceptional poor judgment on the part of the mother’s counsel,” agrees Colman. “Notice to the profession: Don’t relitigate something in a case conference brief.”
Kurz also took issue with the language the mother directed at the father in her evidence.
“Another serious problem with the credibility of the mother’s evidence of abuse is her consistent use of hyperbolic language to describe everything that she claims that the father has done,” he states. “She cannot speak of him without the use of a pejorative adjective to define his motivations or conduct; as if the facts themselves will not suffice. Her language so demonizes the father and his motivations that it is hard to see the objective truth hiding behind the thick gauze of her denigration.
“Rather than bolster her credibility, the mother’s insistence on disparaging adjectives to describe every act of the father diminishes it,” he adds. “It tells the court that she is so caught up in her attacks on the father’s character that she loses track of the facts that she attempts to convey.”
Colman says lawyers should be aware they need to parse the words clients use in affidavits.
“Heaping abuse on the other side does not help,” he says. “It won’t help you win. In fact, it hurts your case.”
Cases are already ‘soul-destroying’
Kurz reminded all family law lawyers that they have a duty to convincingly present their client’s case without resorting to needless attacks on the other side.
“Family litigation is far too corrosive of once-loving relationships and far too soul-destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective,” he wrote. “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.”
“Lawyers have to be willing to say, ‘I will not allow you to put that in your affidavit,’” says Colman. “We are officers of the Superior Court of Ontario, and we have a solemn duty to act professionally. We cannot simply be a mouthpiece for our clients.
“We are obliged to temper what they want to say. We have a responsibility to exercise professional judgment when putting together affidavits,” he adds.
While Colman says he agrees with the bulk of Kurz’s judgment and advice to the profession, he says he was disappointed with the final point, where the judge states “none of these comments should be taken as a comment on present counsel.”
“The mother’s lawyer should not so easily be let off the hook,” says Colman. “Justice Kurz excoriated that lawyer throughout the decision about his destructive and corrosive affidavit drafting in the motion. And so His Honour should have!”
“This is a specific message to the lawyer in the case, and to the profession in general,” he adds. “As Justice Kurz notes, rhetorical excess is indeed the enemy of good advocacy.”
