Alsawwah v. Afifi, 2020 ONSC 2883 (CanLII), http://canlii.ca/t/j7nn9

During the COVID crisis there has been a proliferation of court decisions which touch upon the role of counsel in family law disputes. Perhaps this stems from the increased scrutiny arising from counsel gaining access to the court based on the enunciated threshold test of urgency. These considerations are also applicable to estate and power of attorney disputes. These disputes also involve families and can be debilitating.

One of the most extensive written judicial commentaries was recently set out by Justice Marvin Kurz of the Superior Court of Justice in Alsawwah v. Afifi, 2020 ONSC 2883.

Justice Kurz opened his reasons with the following reference:

1. The famous American trial lawyer, Louis Nizer, once wrote that “[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.” This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart. I recommend it in this case.

In the body of his reasons for decision he takes a moment to use his platform:

A Word or two About Rhetorical Excess in Family Litigation

103. Having been required by the exigencies of this motion to closely and frequently review the materials filed in this motion, I feel constrained to offer a few words of caution to the parties, their counsel and to the profession as a whole.
104. 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. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling duty bound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.
105. Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents’ struggle, can leave their field of battle scarred for life.
106. The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.
107. Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist.  Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize the truth of Mr. Nizer’s aphorism that began these reasons, all too many, unfortunately, fail to do so.
108. 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:

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

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

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”.

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.

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

6. Similarly, hearsay allegations against the other side which fail to comply with 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.

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.

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

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.

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.

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.

There has been a great deal of favourable commentary online amongst the family law bar regarding these comments.  I have heard variations of these comments from some judges in open court for well over thirty years. Yet very little has changed. The system is adversarial by nature. These comments apply equally in the estate and capacity practice area. Elder capacity disputes are in essence custody and access disputes involving vulnerable older adults without a specialized court or rules.

The struggle is underpinned by the framing of the role of counsel as an advocate for the client in the Rules of Professional Conduct of the Law Society of Ontario:

Advocacy 

5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary

[1] Role in Adversarial Proceedings – In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

[2] This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators and others who resolve disputes, regardless of their function or the informality of their procedures.

[3] The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client’s case.

[4] In adversarial proceedings that will likely affect the health, welfare or security of a child, a lawyer should advise the client to take into account the best interests of the child, if this can be done without prejudicing the legitimate interests of the client.

[5] A lawyer should refrain from expressing the lawyer’s personal opinions on the merits of a client’s case to a court or tribunal.

[6] When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client’s case so as to ensure that the tribunal is not misled.

[7] The lawyer should never waive or abandon the client’s legal rights, such as an available defence under a statute of limitations, without the client’s informed consent.

[8] In civil proceedings, a lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections, attempts to gain advantage from slips or oversights not going to the merits or tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute.

These obligations constitute what is often referred to as “zealous advocacy”. It is often difficult to navigate the line between zealous advocacy on behalf of the client in accordance with the client’s instructions and the expectations of the Court. The inclusion of sub rule (4) regarding the best interests of the child is the opening for a lawyer to move away from the zealous advocacy role in family law matters.  There is no such opening when dealing with the capacity of an older adult and the destructive effect of litigation on the family as a whole.

It takes years of experience to learn how to manage and meet the expectations of the client, the Court and the Rules of Professional Conduct.

I suggest that the inherent problem is the adversarial system in these practice areas. There has been a great deal of discussion in the family justice sector regarding a re-imagining of the system to eliminate the historical adversarial model but there has been little traction to date. Without an elimination of the adversarial system in all but the most grievous cases I expect that judges will still be trying to send this message thirty years from now after perhaps I am finally retired.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.