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The 22 Day Divorce: How Not to Impress the Court

11 minute read
    Also authored by: Jon Wakelin

    The area and practice of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is the Lerners Family Law Group's weekly update on how that change is being made:

    Divorce proceedings are understandably stressful endeavours. For the parents or soon-to-be-ex spouses, while coordinating exchanges, negotiating support, and, arguing your case at trial, it can be all too easy to lose focus on the impact of the proceedings on the most vulnerable participants, the children. So it’s no surprise that the courts make the interests of children a priority.

    A recent case, KM v JR, serves as a reminder that, even in these times of tremendous stress, divorcing couples need to maintain civil throughout the process, both for their success at trial and their child’s long-term health.

    Here I hope to offer some helpful “Dos and Don’ts” for those who might find themselves in high-conflict parenting battles.

    The judge in this case offered poignant remarks following an embittered twenty-two-day trial. The divorcing couples’ disregard for their child’s wellbeing merited this stern message from the court: “Why am I starting this judgment with such a strong warning? Because this trial could have been avoided – and a four-year-old boy could have had a much happier life – if only the parents had selected an exchange location better than Hamilton Police Station 30.”

    Their relationship was far from idyllic. The couple separated after only a year of marriage, their son was born a year later, and they divorced a little over a year after his birth. From the outset, the goal of each parent was clear: convince the court that the other deserved the award for “Worst Parent in History”.

    Motions and cross-motions were litigated and re-litigated. Each party poured over weeks’ worth of evidence, including  ,  recordings of each other and the child, and witness testimony, all to show the other was unstable and unfit to parent. Unfounded allegations of assault and parental drug use, alienation tactics, outright misrepresentations, and highly aggressive behaviour were among the litany of issues in play.

    In the court’s ruling, a recurrent theme was that much of the evidence focused on the parents’ relationship with one another, rather than their respective relationships with their child.

    What can we learn from this? The judge in the case had no lack of recommendations:

    1. Presenting Evidence

    DO spend the time working with the opposing party to identify which facts can be agreed upon before trial and which facts cannot. Even if you cannot agree to everything, DON’T leave it all to trial. Proving the minutiae of every allegation will cost you. Your efforts to cut down repetitive or marginally relevant evidence will save you time, effort, grief, and, not to mention, money.

    Parents’ lawyers may be understandably concerned that recent amendments to the law may have expanded the scope of considerations for judges. While, in theory, you may think that it is best to leave no stone unturned, this is not always the case and is certainly not cost effective.

    DO tell the judge what they need to know to help them decide what’s in the child’s best interest, but DON’T tell them everything. Simple, neutral admissions, like “we can’t get along” or “we agree we cannot stand to be in each other’s physical presence” can help move issues along. These simple forms of agreement are not only pointing out the obvious but may avoid dragging out the process.

    2. Secret Recordings

    DO exercise caution when considering whether to surreptitiously record the opposing party. The judge in this case noted that from the parent’s perspective, the decision to create surreptitious recordings of any sort can just as likely backfire.

    DO consider the potential effects of deviously recording your spouse and how this might appear to the court. Heightened tensions, mistrust, and loss of credibility are all potential risks.

    Even more harmful is the recording of children for strategic purposes. The judge described this growing trend as a “theft of innocence” and warned not only that it is strongly discouraged, given the parents’ myopic focus on winning the litigation, but also “… it complicates the child’s life immeasurably; heightens anxiety about parental conflict; tests the child’s loyalties; and imposes unbearable responsibility for the child to try to fix adult problems.”

    3. Child Exchange Arrangements

    DO face the facts. As the judge rightly pointed out, “[i]f at any time … the parents had simply accepted the reality that face-to-face interactions inevitably lead to serious conflict, their lives [and their child’s life] would have been better.” Escalating conflict risks highly toxic effects and a significant negative impact on the child. In this case, the decision to use a police station as a supposedly “safe” location for the child may be a bad choice considering the potential of unnecessary stress and harm to the child.

    DO consider how your child exchange arrangements can be planned to shield your child from more adult conflict.  For example, it might not be wise for angry parents to bring their new partners to these exchanges. The new partner’s utility as a witness, for example, may be negligible given that partners typically give evidence with a “transparent strategic purpose.”

    DON’T ignore the realities of your relationship. In this case, the parties couldn’t stand each other but consented to an Order requiring frequent face-to-face exchanges. The judge noted that the parents had known for years that almost every time they interact in front of their young son, he is stressed, sometimes to the point of hysterical crying. At that point, they should have stuck with the “fundamentally important objective of eliminating face-to-face interactions for the long-term wellbeing of their son.”

    4. In the Best Interests of the Child

    DO remember that the purpose of the court is not vindication or affirmation for parents, but rather ”the one and only objective is to determine what’s best for the child[, t]hat’s the evidence [the justice] need[s].

    DO focus on evidence that will be relevant to the court, and limit anything that is effectively just a complaint. If it is irrelevant to the child’s best interests, even if true, it may be a waste of everyone’s time. Parents need to present evidence on all issues, not just the ones they would prefer to talk about. So DO spend time with your lawyer focusing on the critical issues and cut away the fluff.

    Having a strong case on some topics does not guarantee your success on others. DO confer with your lawyer and try to give thought to where the evidence may fall short. The justice should never, especially after twenty-two days of evidence, feel like they have “known [the] parents for a decade” but also feel like the child at issue is still a stranger.

    In our judgment

    What are our takeaways from the judge’s lengthy rebuke in this case?

    1. Avoid the temptation to overwhelm the court with evidence;
    2. Find common ground wherever possible, even if you cannot precisely agree on the cause or extent of an issue, or how to resolve it; and
    3. Keep your child’s best interests at the forefront of your mind because that’s what the court will do.

    In divorce cases involving children, attention often is on adult behaviour. Determining the future rights of your child will always be stressful, regardless of whether you are exiting a high-conflict relationship or not.

    Above all else, DO keep in mind, that the court must not (it is obliged under the Divorce Act), and will not, lose sight of (1) the best interest of your child, and (2) the protection of your child from conflict. Neither should you.

    ABOUT THE LERNERS FAMILY LAW GROUP

    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, London, and the Waterloo Region, 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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