How Moderate Should I be in My Affidavit?
Often, clients urge and tell me to that they wish to go “ballistic” in their affidavits. Clients are often carried away by emotions. Lawyers, less so. Yet, there are times when lawyers too get carried away along with clients in increasing the tension and rhetorical nature of their feelings by putting in emotions into their affidavits. Surely, the phrase “ the pen is mightier than the sword,” comes to the fore.
I recall an instance a few years ago when a Judge asked me what the need was one of my client’s affidavits to be inflammatory. She let it go. But on reflection, I realized that perhaps I too had lost some objectivity in ensuring and gatekeeping to keep the emotions out of the affidavit.
Let us first examine as to why clients consider the affidavit as the all important document to vent their emotions? The reason is that unfortunately, the affidavit is all important because it is the only evidence that a Judge reads or knows of prior to trial, in ruling on motions and heads of relief before the Court. So, there is this tremendous desire to share with the Court the hurt, the emotions and the feelings that a client has and this, they feel can only be done through an affidavit.
However, the reality is that it is critical to be dispassionate and objective in writing an affidavit. The reason for this is that the Judge should not be emotionally drawn into the conflict or dispute. As a result, it is critical for an affidavit to only be factual – i.e., to only have facts contained in the affidavit. The lawyer will then argue the matter before the court putting the points across, again without bringing in the emotions but at the same time, expressing to the Court, the emotional nature of the conflict and how the conflict has hurt the client – that is the lawyer’s job to effectively doing this.
Recently, Justice Marvin Kurz gave some excellent guidance in Alsawwah v. Afifi, 2020 ONSC 2883, where on his own initiative, he emphasized as to what an affidavit must contain and must not contain. This is very useful reading. It tells us quickly in a page as to the essential elements that we can put in an affidavit.
“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:
Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
Nor are we swayed by rhetoric against the other party that verges on agitprop.
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”.
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.
Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
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.
Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
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.
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.
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.”
In particular, I invite the reader’s attention to number 11 – to take a moral high ground. Just because the other side is making all sorts of allegations, it doesn’t mean that we too have to stoop equally low. We don’t have to and by showing the court that we are only focusing on the facts, and being civil and polite, will actually win us bonus points as noted above.
At Shankar Law, we will do our best to ensure that your affidavit and other materials are top-notch and of proper quality. We are happy to assist and guide you through whatever challenges you have in your spousal life.
We work in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound.