A Few Thoughts for Family Law Litigants, Part Two: Comments From the Bench and Others From Me

In my recent post “A Few Thoughts for Family Law Litigants: Why it Pays to Let Bygones Be Bygones,” I wrote about the foolishness of litigants who allow themselves to be guided by hurt feelings or desire for revenge when taking their family law dispute to court. I also gave a few examples of the typical sort of silliness I often saw in my practice when parents managed their conflict by exchanging allegations and counterallegations in affidavits, such as this gem from early in my career:

Her: “You drink all the time. You’re always drunk and there are empties all over the house. You even drive when you’ve been drinking.”

Him: “I only drink socially, one or two beers at most, and I never ever drive when I’ve been drinking. You smoke pot. You even smoked pot while you were breastfeeding our daughter.”

Since that post, a number of colleagues have brought to my attention two recent decisions by Madam Justice Sharma of the Supreme Court of British Columbia which make some rather pointed remarks on this issue, B.A.S. aka B.H. v S.R.S. and A.M.D. v K.R.J. Each case took two days to argue, and Justice Sharma apparently heard them back-to-back at the end of January 2015. If she happened to be frustrated by the nature of these hearings, which I am sure was absolutely not the case, such would nonetheless be entirely understandable.

B.A.S. v S.R.S.

This decision involved the respondent’s application to change a temporary order on parenting arrangements. As is usual for interim applications in the Supreme Court, the only evidence before the court was contained in affidavits. There was no oral evidence.

Here are the judge’s preliminary comments about the quality of the affidavit material before her, with some of the more important bits in bold:

“[3] The affidavit material filed in support of and opposition to the application contained hearsay, double-hearsay, statements without attribution or that could not be in the affiant’s personal knowledge, argument, speculation and other statements of dubious admissibility. Allegations are flung from both sides. Each party objected to portions of the other party’s evidence and suggested it was either wholly inadmissible or should be given minimal weight.

“[4] Some of the claimant’s and respondent’s affidavits relate singular incidents between a child and the other parent that were not significant in the overall assessment of what is the best parenting arrangement for the children. Both parties suggest there are times when they have not been appropriately notified of travel or minor medical and school issues from the other parent. They each accuse the other of talking about the parenting dispute in front of or directly to the children.

“[5] In addition, the claimant’s affidavit contained a serious allegation against the respondent and his wife about drug use and association with criminals with absolutely no corroborating evidence. In my view, those allegations were improper and should not have been made.”

Readers may recall my remark in my previous post about affidavit battles to the effect that “each party is behaving like a child, busy throwing shit at each other, and the job of the judge is reduced to deciding which parent is the least shitty.” In any event, here is how the judge summarized the parents’ positions:

“[9] In general, the respondent takes the position that the children are doing well living with him and his wife and are taking part in a wide variety of activities. He contends the children’s lives when they resided with the mother were ‘fraught with conflict, to the point where [the children] expressed, and continue to express, a strong desire to reside’ with him and his wife. The respondent seeks to reduce the children’s weekend visits with the claimant from biweekly to once a month and, instead of an entire month in the summer, two non-consecutive weeks with their mother. …

“[10] The reduction in the summer time is said to be based on the children’s desire to spend as much time as they can in [the respondent’s city] so they can continue with their activities and visit friends.

“[11] The claimant’s response to the application is deficient. … The factual basis for the response is encompassed in five bullets. Briefly, the claimant accuses the respondent and his wife of interfering with her parenting and making her communication with the children very difficult. The claimant’s position is that the application is not genuine and is a continuation of a campaign to alienate the children from her. This is a serious allegation, which as I discuss below, I am persuaded has not been established on the evidence. Unfortunately, the claimant heavily relies on the allegation of alienation and offers little other factual or legal arguments as to why the application should not succeed. This puts the court in a very difficult position. The sole issue is to determine what is in the children’s best interests but the claimant has not really answered the respondent’s claims. She submits the blanket statement that extra-curricular activities ought not to trump her time with the children yet she offers no views on whether the activities they are engaged in are in the children’s best interest. Nor does she offer a way to accommodate maintaining the current schedule and not diminishing the children’s participation in activities.

“[12] In relation to the application that [the respondent’s wife] become a guardian to the children, the respondent says the appointment is necessary to legally recognize the fact that [the respondent’s wife] provides the day to day care of the children while he works. He claims the claimant refuses to communicate with his wife, thus making their family life and decision-making difficult and cumbersome. …

“[13] The claimant is opposed to [the respondent’s wife] becoming a guardian but provides no reason other than the fact that [the respondent’s wife] is not the children’s biological parent. With regard to communication, she denies she makes it difficult for [the respondent’s wife] to communicate with her. At the same time, her position in court is that she is not legally required to communicate with [the respondent’s wife] so the allegation that she does not communicate should not be taken into consideration.”

Good stuff; congratulations to all involved. Unsurprisingly, the judge was lead to this conclusion in allowing the respondent’s application:

“[50] This dispute is bitter. It is clear the parties are not working together well. This is tragic and does nothing to promote the well-being of their children.”

A.M.D. v K.R.J.

This case was a summary trial hearing, meaning that there was no oral evidence provided by witnesses, and that all of the evidence before the judge was in affidavit format. The following comes from Justice Sharma’s description of the facts of the case, with the more important bits in bold as usual:

“[30] The parties brought to my attention over 30 affidavits in this two day application. A lot of the content in those affidavits is inadmissible because it is hearsay, double-hearsay, opinion or speculation, facts stated that are outside of the affiant’s personal knowledge or facts that have an insufficient foundation. Equally, a great deal of the evidence is irrelevant, unhelpful or clearly self-serving and, therefore, of questionable reliability.

“[31] I find two categories of evidence particularly troubling. The first is where one parent describes his or her observation about a single interaction of the other parent with [the child], the child’s reaction on a single occasion to something the other parent has said or done, or the child saying he was or appearing to be reluctant to want to go to the other parent’s home at the time of transfer.

“[32] The second category is the parents’ conversations with [the child] about issues in this case which are reproduced in their affidavits. It is highly inappropriate for the parties to implicate their six year old child in this dispute in any way.

“[33] It is important to note neither party takes the position that the other party is an unfit parent (except, maybe, an accusation made about the respondent’s drinking, which I will address below). Even if there was such an allegation, the type of evidence described above reveals little, if anything, unusual about either parent’s interaction with their young child in the context of shared parenting.

“[34] Instead, I find these observations are being traded in a ‘tit for tat’ fashion. I am led to believe this kind of evidence is not uncommon in contested family cases. Common practice is not determinative of admissibility or relevance. 

“[35] I discourage parties from adducing this type of evidence which, I think, is a passive aggressive tactic. There is no blatant accusation of unfit parenting, but the evidence put forward by one parent is such that the other parent cannot resist answering because the statements or the inferences that could be drawn from the statements are inflammatory. The parties get drawn into a cyclonic battle of the affidavits, often enlisting friends or relatives to contribute more affidavits.

“[36] I must decide what is in the child’s best interests. In that context, each party’s view of what is best for the child and the facts on which that view are based may be helpful to my decision. What is of dubious relevance and questionable reliability is a person’s observation that on one or a few occasions a parent’s interaction with the child or the child’s reaction was less than ideal. Of no relevance is what a six year old said to a parent when that parent, inappropriately, talked to the child about the legal issues in this case.”

I do like that phrase, a “cyclonic battle of the affidavits.”

At this point in her reasons, the judge turns to the claimant’s allegations about the respondent’s drinking habits:

“[37] The claimant states the respondent ‘appears to have an issue with alcohol’ and that there is an ‘obvious alcohol abuse issue’. She refers, among others, to an incident in April 2013 when she believes the respondent was ‘grossly intoxicated’ while [the child] was in his care. She claims to have confronted him about his drinking during their marriage and says it was a huge issue in their relationship.

“[38] The respondent ‘wholly denies’ any problems with alcohol. He points out he is regularly tested for drugs and alcohol for his job. There is also an affidavit from the other person present during the April 2013 incident and that person disagrees with the plaintiff’s characterization of what happened and the respondent’s state of sobriety.

“[39] The respondent questions the sincerity of the claimant’s accusation, asking why, if she truly believes the respondent has an ‘alcohol abuse’ problem, she had not sought different parenting terms. Either her concerns about alcohol prior to the relocation dispute were not serious enough to take action, in which case they are not material to this application. Or, she is exaggerating the incidents and her level of concern to try gain an advantage in this application.

“[40] Taking all of these circumstances into account, I find the allegation about alcohol abuse is unfounded. The allegation is serious and should not have been made.”

At the end of the day, the claimant’s position was rejected by the judge while the respondent’s was allowed. He must have been the least be-spattered parent.

A Few More Points

I concluded “Why It Pays to Let Bygones Be Bygones” with a list of things litigants can do to improve the likelihood that they’ll be successful in court, and you can see that the folks in B.A.S. v S.R.S. and A.M.D. v K.R.J. disregarded many of them. Their cases remind me of a few other things I think need to be said about courtroom disputes involving children.

First, as I said, or at least implied, in my previous post, the court is generally unconcerned about allegations moral unfitness or character deficiencies unless they impact on a person’s capacity or ability to parent a child. No matter how much problems along these lines trouble your client, they should not be raised them in court unless:

  • you are convinced that the problem impacts the opposing party’s capacity, willingness or ability to parent the children;
  • you are convinced that the problem is one that other people in the general community would tend to agree is a serious problem which, if true, would likely impact the opposing party’s capacity, willingness or ability to parent; and,
  • you have evidence in hand which proves that the problem the client is complaining about actually exists.

Second, if the client doesn’t have one big problem that you can use to explain why the opposing party lacks the capacity or ability to parent a child (“you’re always drunk” or “you smoked pot while you were breastfeeding,” for example), don’t try to compensate by raising a great heap of much smaller problems instead (“he once left the child in the car when he went to buy milk,” “she used a naughty word in front of our five-year-old” or “he got drunk at last year’s office party and used the photocopier in an inappropriate way”). I have seen affidavits that go on at a ridiculous length, cataloging one picayune issue after another in numbing detail. I appreciate the effort that goes into preparing such material, and we all know how much such affidavits cost our clients, however it’s important to remember that this strategy rarely, if ever, works.

The fact of the matter is that endless litanies of complaint about small problems do not have a cumulative effect that eventually equals the impact of a big problem, tipping the scales in your client’s favour. Instead, the court, to be blunt, is likely to see you’re client as a colossal whiner who is prepared to complain about anything to get his or her way, and the force of your client’s complaints will get smaller and smaller with each successive complaint raised. Eventually the tables may wind up turning in the opposing party’s favour if your client comes to be perceived as the parent who is obstructing the post-separation care of the child!

Third, clients have a weird belief in the importance and relevance of character references. I don’t know where this comes from, since nothing in the Divorce Act, or in the provincial family law legislation that I’ve read, says “the winning parent shall be the parent with the most people willing to say nice things about that parent,” but there does seem to be this odd reflex to run to friends and family the moment a parenting dispute seems headed to court.

There are a few problems with this approach, apart from the rather sad likelihood that the writing of character references and letters of support will bring an abrupt end to the author’s relationship with the opposing party, including these:

  • letters are hearsay, if you will recall, and are not proof that things said in the letter are true (if someone has something really important to say, get them to write an affidavit);
  • most people are able to collect a pile of letters attesting to their fine qualities as a parent, pet owner or employee, and the fact that your client’s got a stack of them doesn’t mean that he or she is particularly special;
  • most letter writers are clearly partisan, and the weight the court will give to the convivial words of an ally is less than the the weight it would give to the comments of a genuinely objective third party; and,
  • letters like this generally don’t talk about the negatives known to the writer (“well, she does drink every now and then, especially in the early afternoon on school days, but other than that she’s a totally awesome mom”) just the positives (“Harry, or Saint Harold as we all call him in the neighbourhood, is the most wonderful and wise parent I have ever met and absolutely radiates compassion, love, tolerance and patience”), which seriously undermines their credibility and utility.

If you really want to improve your client’s chances of “success,” avoid tactics like these. The client should focus on being an attentive and involved parent, admit the opposing party’s strengths, and take a mature and considered approach to the family law dispute that pragmatic, utilitarian and aimed squarely at the children’s best interests and the future functioning of the separated family unit.

A version of this post originally appeared in JP Boyd on Family Law: the Blog on 8 June 2015. (If you’re wondering how I could possibly have the stones to give my blog a name like that, it comes from the name of the public legal information resource JP Boyd on Family Law, a wikibook published by Courthouse Libraries British Columbia. They chose the title, completely ignoring my mild and inauthentic objections.)

John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary

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