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Family Matters: Lerners’ Weekly Family Caselaw Review: [Un]tested and [Un]true?

5 minute read

Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law Group presents two of the most interesting cases from the week of January 4, 2021:

The focus of this week’s case summary is two recent decisions out of the Superior Court of Justice, authored by Justice Monahan and Justice Kraft.  The decisions, released days apart, both contain cautionary notes to litigants about the challenge that Courts have when parties attempt to rely on competing, untested, affidavit evidence.

In Arbitman v Lee, 2021 ONSC 315, (“Arbitman“) Justice Monahan heard a motion brought by an Applicant father seeking an equal parenting schedule for the parties’ two children. The Applicant had limited access to his children following the Respondent mother leaving the matrimonial home in November 2020.  On the motion, the father sought the implementation of a 2-2-3 schedule, and the mother sought an Order that the children reside primarily with her, and have specified and limited parenting time with the father, in the presence of a third party.  The mother took the position that she was the primary parent and raised safety concerns about the father, which the CAS investigated and did not verify. The father asserted he had a central role in parenting the children.

Both parties filed numerous affidavits on the motion which “paint[ed] radically different views” of the parenting roles. Each party filed their own affidavits as well as affidavits from third parties with varied degrees of involvement with the family. The affidavits were proffered either to corroborate the party’s own evidence about their role or rebut the other party’s evidence.

Similarly in Liu v Xie, 2021 ONSC 222 (“Liu”), Justice Kraft heard a motion brought by an Applicant father seeking an equal parenting schedule for the parties’ two children. The parties had been living separate and apart in the same home, but the situation had become untenable and the parties could not agree on a parenting schedule.  The Applicant father sought a shared parenting schedule and the Respondent mother sough a schedule whereby the children would have limited day access with the father, and a gradual addition of one overnight.

There were 18 affidavits filed on the motion, none of which had been tested by cross-examination, which Justice Kraft observed to present “highly competing” representation of the roles each parent played in the children’s lives.  Ten of those affidavits were third party affidavits filed by the mother.

Both Justice Monahan and Justice Kraft raised concerns in their reasons that the competing affidavit evidence filed could not be tested in the context of a temporary motion. The 10 third party affidavits filed in Liu were found to have limited probative value – many did not emanate from the deponent’s own direct observations, and without questioning, it was difficult to assess the neutrality of the evidence, or test its reliability. Justice Kraft observed:

“The practice of litigants filing multiple third party collateral affidavits in support of a parent are only helpful, in my view, if the third party has direct knowledge of the parenting roles played by the parties.  Having a third party depose that one parent is a good parent, an involved parent, and that he/she loves his/her children, does not assist the Court in reaching a conclusion that the other parent is not a good parent; is not involved or does not love his/her children as much as the other parent.” (at para 84)

In a section of his reasons entitled “The Need for Caution in Dealing with Untested Affidavit Evidence”, Justice Monahan found that “extreme caution is required before making factual findings on disputed matters without the benefit of cross examination”.  He observes that in the circumstances it was only appropriate to make findings of fact based on areas of common ground, which were not disputed.

In both cases an equal parenting schedule was Ordered: in Liu a 2-2-5-5 nesting arrangement, and in Arbitman, a 2-2-3 schedule.

Also on the topic of what is and is not helpful for the Court on a temporary motion, both of these cases also involved surreptitiously obtained recordings of a party, which were found to be of little assistance to the Court.

Justice Monahan reviewed the strong policy concerns that weigh against the use of this type of evidence unless the probative value is particularly compelling. He found that these recordings “undermine the goals and values of family law”, are “more likely to increase conflict”, and relying on them may “send the wrong message by appearing to reward the behaviour, whereas such practices should be discouraged”.

Given their consistency and proximity in time, these decisions are a helpful indicator of the current sentiment of our Court regarding the appropriate approach to evidence on temporary motions.

About the Lerners Family Law Group

At a time when much is at stake, there is no substitute for having the experienced and skilled advocates from Lerners at your side. You need compassion and understanding, but you also need someone to protect your interests. Our Family Law Group tailors its approach and strategy to your goals to achieve the best possible outcome. Our team, located in Toronto and London, serving the GTA, Southwestern Ontario, and beyond, has the experience to handle matters both straightforward and complicated, without ever over-lawyering or contributing to unnecessary conflict. With a successful track record that includes some of Canada’s most complex family law cases, we are focused on getting you results and helping you move forward. Contact us to see how we can help.

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