Get Over It, Part Two: Thoughts from the Bench and a Few More from Me

In my recent post "Get Over It: Why it Pays to Let Bygones Be Bygones in Family Law Disputes," I talked about the foolishness of being guided by your hurt feelings or desire for revenge when taking a family law dispute to court. I also gave a few examples of the typical sort of silliness I often saw in my practice as a family law lawyer 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 not the case, such would 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 about such affidavit battles in my previous post 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." 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."

Awesome. 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." In any event, at this point, the judge discusses 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 succeeded. 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 you can do to improve the likelihood that you'll be successful in your court case, 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 that need to be said about courtroom disputes involving children.

First, as I said, or at least implied, in my previous post, the court is 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 you, do not raise them in court unless:

• you are absolutely positive that the problem impacts the other person's capacity or ability to parent your children;
• 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 other person's capacity or ability to parent; and,
• you have evidence which proves that the problem you're complaining about actually exists.

Second, if you don't have one big problem that you can identify to explain why the other person 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 bunch of small problems instead ("he left the child in the car once 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, however it's important to know that this strategy never works.

Endless complaints about small problems do not have a cumulative effect that eventually equals the impact of a big problem, tipping the scales in your favour. Instead, the court, to be blunt, is likely to see you as a bit of a whiner who is prepared to complain about anything to get your way, and the force of your complaints will get smaller and smaller with each successive complaint. Eventually the tables may wind up turning in the other parent's favour if you come to be perceived as the parent who is obstructing the post-separation care of the child!

Third, people 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 the Family Law Act 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 writer's relationship with the other parent, including these:

• letters are hearsay, they 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, employee or pet owner, and the fact that you've got a stack of them doesn't mean you're special;
• most letters are clearly partisan, and the weight the court will give to the happy words of an ally is less than the the weight it would give to the happy words of an 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 on the whole she's a totally awesome mom") just the positives ("Harry is the most wonderful and wise parent I have ever met and absolutely radiates compassion and patience"), which seriously undermines their credibility and utility.

If you really want to improve your chances of "success," avoid tactics like these, focus on being an attentive and involved parent, admit the strengths of the other parent and take a mature and considered approach to your family law dispute that is aimed squarely at the children's best interests and the future functioning of the separated family unit.

Get Over It, Part One: Why It Pays to Let Bygones Be Bygones in Family Law Disputes

Difference is a necessary part of the human condition, without which we'd be an awfully dull lot. Although difference is what gives us creativity and invention, it's also the cause of intolerance and war, and it's what keeps family law lawyers in business. As Martin Gore famously put it,

People are people so why should it be
You and I should get along so awfully?

There are an infinite number of reasons why committed, long-term relationships breakdown. Some people get bored. Some grow apart as they get older. Others just turn into assholes.

Once upon a time, thanks largely to Catholic dogma, marriage was presumed to be a permanent enterprise that would end only upon the death of one or both spouses. That was probably a reasonable arrangement when life expectancy topped out at 30 or 35, but people nowadays generally live into their 80s, and a life-long commitment to one person is an awfully, awfully long commitment.

However, when we of the commonwealth let our hair down in 1857 and agreed that people could get divorced, we weren't prepared to simply walk away from a centuries-old dedication to permanent misery. As a result, you couldn't just say talaq, talaq, talaq and be done with it, you had to get a judge to make a divorce order and that meant proving that you met the legal test to qualify for divorce.

If you had the good fortune to be male, you could ask for a divorce under s. 27 of the Divorce and Matrimonial Causes Act on the basis that your wife had committed adultery at some point during your marriage. If you happened to be female, simple adultery was a no-go. Instead, you could ask for a for a divorce on the basis that your husband had committed:

• incestuous adultery;
• bigamy with adultery;
• rape, sodomy or bestiality;
• adultery coupled with cruelty; or,
• adultery coupled with — my favourite — "desertion without reasonable excuse" for at least two years.

We in Canada are so awesomely progressive that our first legislation on divorce, the 1968 Divorce Act, abolished the distinction between sexes. Regardless of gender, you could ask for a divorce on the basis that you had been separated for at least three years, or, under ss. 4 and 5, that your spouse had:

• committed adultery;
• been guilty of sodomy, bestiality, rape or a "homosexual act" (exquisite interior design, perhaps?);
• gone through a form of marriage to someone other than yourself;
• treated you with such cruelty that you could no longer live together;
• been imprisoned for at least three of the last five years;
• been recently sentenced to death or imprisonment for at least ten years;
• been "grossly addicted" to alcohol or drugs for the last three years; or,
• disappeared for the last three years or deserted you for the last five years.

Ahead of our time we truly were.

The Divorce Act didn't stop there. You could also ask the court to make orders for spousal support and child support, and for the custody of your children. However, the court, in addition to considering your "condition, means and other circumstances," also had to think about "the conduct of the parties." Ouch. You can imagine the havoc wrought when success or failure hung on proof of your misconduct during your marriage, or that of your spouse.

Things got much better with the 1985 Divorce Act, which introduced a "no-fault" version of divorce. Although you could still get divorced because of your spouse's adultery or cruelty, misconduct was removed as a consideration in making orders for child support, and the court was expressly forbidden from considering the conduct of a spouse during the marriage when making orders for spousal support and custody.

Now the thing about people is that you can say that misconduct isn't a factor, but it doesn't stop them from thinking that it should be a factor, especially when they're still full of the fraught and inflated emotions that accompany the breakdown of a long relationship. (Terrible lawyers who fail to steer their clients away from this line of thinking certainly don't help.) This brings me to the point of this particular post: it is both idiotic and expensive to take positions in family law disputes because of your hurt feelings or desire for revenge. Let me give you a couple of examples and explain.

"He knew that full well that doing drugs was a deal-breaker — that was why my first marriage broke up! — and he did cocaine anyway. Is this grounds for me getting more than half the family property?" 

"She's the one who had the affair. I'm not going to pay her a penny of support, even if I have to quit my job." 

"I told him when we got married that pornography was an issue for me. He promised me that he would never use it. When we got an internet connection, I asked him again if he would be able to avoid looking at pornography, and he promised he could. I just saw his web browser history and I am completely disgusted. I feel that he's broken a fundamental trust. I want sole custody!"

All of these statements come from people I've spoken with in the last few months, and, regardless of my personal views on the probity of such behaviour, they were all pretty wound up about the situations they found themselves in and were genuinely upset about their spouse's behaviour.

I get that. I understand. I've had thousands of clients in the years I practiced family law, and I totally appreciate how hot emotions run when a long-term relationship comes crashing to the ground. No worries. A problem, however, arises when these emotions are allowed to drive the train rather than the rational side of your brain. The simple truth is that if you walk into court with positions like these, you will lose. None of these positions are supported by the law or the legislation. Not only will you most certainly lose, but:

• your legal fees will be much higher than they would otherwise have been;
• you may be ordered to pay your spouse's costs of the application, the trial or the whole of the court proceeding;
• the enmity you feel toward your spouse now will last far longer than it normally would, and your spouse is certainly going to share the sentiment; and,
• you will likely lose the respect of your children and, I hope, of your friends and family as well.

The thing is, we no longer think about fault, misconduct, narcissistic injury and the priggish sensibilities of a spouse when we deal with family law problems. Yes, doing illegal drugs is a problem, but it's got nothing to do with how property is divided. Nothing. If you have kids, and he's high when he looks after them, then I have a problem, not because I have a moral issue with his choices but because it reflects poorly on his priorities and parenting capacity. Yes, having an affair is bad, but it's got nothing to do with whether your spouse is entitled to spousal support. Nothing at all. And if you quit your job, I'm going to ask the court to impute income to you and ask for your spouse's costs of the application because of your petty, irresponsible behaviour. Likewise I have no issue with someone's use of pornography, unless the pornography involves children or he watches pornography in front of the kids. You might object to behaviour you consider sinful, but your views of his corruption and general naughtiness have nothing to do with his relationship with the children and capacity to care for them. 

Now consider, for a moment, how your spouse is likely to respond to claims involving his or her weak morals, drug and alcohol use, abusiveness, quick temper, masturbatory habits and so forth. People don't generally take kindly to seeing claims like that in court papers, whether they're true or not, and tend to fight fire with fire. I guarantee that your spouse is not going to write an affidavit admitting to everything. Instead, your spouse will file a stern response that not only denies the truth or extent of the claims you've made but asks for costs, and will then write an affidavit talking about all of your peccadilloes and indiscretions! I once had a case, very early on in my career, which went something like this:

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."

She thought she was seizing the moral high ground by pointing out his weaknesses. He replied by trivializing the severity of his drinking, as I would have expected, and came back with a spicy counterargument about her drug use. I still very much regret this case. 

But what do you think the court does in circumstances like this? Each person 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. Is this how decisions about the care of children should be made? With the greatest of respect, I think not.

The court, you see, does not want to deal with people who come to court with problems, complaints, grievances and bizarre claims that have no reasonable prospect of success. The court does want to deal with calm, rational people who come to court with solutions, and whose preferred results are well within both the law and the range of likely outcomes. Among other things, this means:

• dropping arguments and claims that are based on your own feelings of woundedness or your spouse's purportedly immoral behaviour;
• avoiding mention of historical events that are not genuinely relevant to the claims before the court, no matter how much those events upset you and continue to upset you;
• keeping your complaints about minutiae and the mundane to yourself;
• writing affidavits that are maximally factual, avoid invective and use a minimum number of adjectives and adverbs;
• agreeing to obligations that you cannot avoid;
• making claims that are minimally controversial, like asking for a divorce based on separation even though you could also ask for a divorce because of your spouse's infidelity; and,
• proposing rational solutions that look to the future, that work for everyone and that are likely to promote the best interests of your children.

Put more simply, you must grow up and let bygones be bygones. Trust me; this will redound to your benefit, that of your spouse and those of your children.