When spouses or domestic partners separate, it is not uncommon for friends, relatives, and business associates to align themselves with one side. In most instances, the support can be emotionally helpful for either party. However, we have all experienced situations in which this support has a darker side. It crosses the line between being a helpful “friend” to being an active participant in the litigation. That is the point at which our Courts take notice of certain actions that may be inappropriate – or worse.

In the recent case of Leitch v. Novac et al, 2020 ONCA 257, the wife, in a factually complex case, alleged that her husband, his father, and others conspired to keep money out of the husband’s hands in order to reduce her family law entitlements. She sued for damages for conspiracy.

The husband, before trial, brought a summary judgment motion in order to dismiss the conspiracy claim. The motions judge, after an extended hearing, agreed that the case was suitable for summary judgment, and dismissed the wife’s conspiracy claim. The motions judge was of the view that the legislation available to the wife, being the Divorce Act, the Family Law Act, the Spousal Support Advisory Guidelines, and the Child Support Guidelines, were sufficiently wide to provide a statutory code which would enable the wife to obtain relief through the mechanism of imputing income. 

The Court of Appeal, in allowing the wife’s appeal, said that, if the trial judge was correct, this would allow co-conspirators to engage in improper behaviour with impunity. The Court found that the tort of conspiracy is a valuable tool to ensure fairness in the process and achieve justice. If it were not available then co-conspirators would have “no skin in the game”. Their participation comes without risk. The tort of conspiracy allows for consequences for inappropriate behaviour. Income imputation under the Family Law scheme is not sufficient, especially, since, in most cases, the conspiracy is all about making a party judgment-proof.

The Court of Appeal ordered a new trial.

Disclosure and Family Law

Before leaving Leitch v. Novac, it is worth noting the comments made by the Court about disclosure. I reproduce them here:

[44]  As the Supreme Court suggested in Leskun v. Leskun, [2006 ] 1 S.C.R. 920, at para. 34, non-disclosure is the cancer of family law. This is an apt metaphor. Non-disclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payers become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor’s required financial contribution. In sum, non-disclosure is antithetical to the policy animating the family law regime, and to the processes that have been carefully designed to achieve those policy goals.

[45] There is a related malady that often works hand-in-hand with non-disclosure

to deny justice in family law proceedings. The problem is what I will call “invisible litigants”. These are family members or friends of a family law litigant who insert themselves into the litigation process. they go beyond providing emotional support during a difficult time to become active participants in the litigation. Usually their intentions are good, and their interference makes no difference in the ultimate result. However, sometimes they introduce or reinforce a win-at-all-costs litigation mentality. These invisible litigants are willing to break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income.

It is interesting to note the benign comment made by the Court that “lawyers for payors become unwitting participants in a fraud on the court.” While this is certainly true, I have often wondered, in my years on the Bench, why lawyers tolerate non-disclosure on the part of their clients. These lawyers really do run a risk of having a judge find that they too should have taken steps, even including firing their client, to ensure that non-disclosure is not a stain on our system of justice. Lawyers have an obligation to do whatever is necessary to ensure that honest and best efforts are being made by their clients towards full, frank, and fair disclosure.

The important point is to ensure that all arbitrations and mediations are conducted on as level a playing field, as possible.

Lawyers’ Conduct

Kurz, J., in the case ofAlsawwah v. Afifi, 2020 ONSC 2883 , writes as follows:

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.

• This is a motion for only one head of relief: exclusive possession of a matrimonial home, where the party out of possession has all three of the parties’ children in his de facto care. Yet one party has chosen to attack the other’s character and drag collateral issues into the case with a rhetorical fierceness that one would expect of a mixed martial arts cage match. The other party, who originally desisted from such conduct, felt it necessary to engage, albeit to a lesser degree, in the same advocacy in his reply materials.

Much of the oratory in the materials before me, particularly but not exclusively those of the Applicant, 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.

The facts of this case are not as important [except to the parties] as the judge’s “directions” which are set out at the end of his decision.

Justice Kurz continues to write as follows:

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. [5]

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.

• 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.

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

• 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.

1. One key to success in family law as in no 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.

1. 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 license 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.

Being aggressive in court is not the same as conducting a strong and determined case. Aggressive lawyers set everyone’s “teeth on edge”, especially those of the judge. In my experience, being aggressive is often a characteristic of the lawyer’s personality as opposed to a legal tactic. A judge’s hints [or more] often fall on deaf ears. There is usually a complete lack of self-knowledge on the part of the lawyer. Aggressive lawyers will read Justice Kurz’s “Directions” but think that none apply to them. Thankfully, such lawyers form a very small minority of the practising Bar. Those who toil “in the vineyards of marital distress” – Walsh, J. – should be grateful for that.

Until next time….