Ontario Judge Notes that Ex-Husband’s Motion was a “Waste of Time” Due to Procedural Irregularities

In a recent decision, notably candid family court judge Justice Pazaratz reaffirmed that, due to procedural irregularities, a case management meeting between two separated spouses was “an absolute waste of time” and that the fault for that “rests with both parties and counsel.”

What Happened?

This was a high-conflict matter that had been transferred from another jurisdiction to Hamilton, where Justice Pazaratz presides.

The ex-husband in the ongoing matter filed a motion dated late June 2018 wanting to compel the ex-wife to comply with “information sharing” provisions relating to the former couple’s four children that had been outlined in a previous court order dated October 2017.

Justice Pazaratz noted that the only evidence that had been filed in support of the ex-husband’s request was the affidavit of [HI], a lawyer who described himself as “a lawyer assisting counsel, [SB]”. Justice Pazaratz further noted that:

• [HI] was not the ex-husband’s lawyer;
• As of late June 2018, SB was also not the ex-husband’s lawyer of record, as the ex-husband had filed a Notice of Change of Representation in late March 2018 indicating that he would be representing himself;
• The judge that had presided over the previous motion in the ongoing matter had noted that “matters quickly spun out of control – with the [ex-husband] terminating his counsel’s retainer in front of the court and taking over submissions on his own”;

Justice Pazaratz went on to note:

So the only evidence [the ex-husband] has provided in support of his motion is an affidavit from a lawyer (who is not his lawyer) who is assisting a lawyer (who is not his lawyer).

Double Hearsay

Justice Pazaratz further noted, about the ex-husband’s proferred affidavit, that:

• The affidavit contained very specific evidence about which party did what, including allegations of misconduct or inappropriate behaviour on the part of the ex-wife and allegations of non-compliance with the order for information;
• [HI] would not have had any personal information about any of this;
• [SB] (who had only periodically been involved as counsel) would likewise have not had any personal knowledge of the facts that formed the basis of the ex-husband’s motion.

Justice Pazaratz concluded that:

This is basically double hearsay through two lawyers.

Additional Irregularities

Justice Pazaratz noted that the ex-wife had filed her own affidavit in early August 2018, disputing the ex-husband’s motion and denying all allegations against her.

When the ex-wife filed her affidavit, the husband: could have, and should have (but did not) file his own affidavit setting out his own story and the facts that he intended to rely on or disputing the ex-wife’s evidence in her affidavit.

Justice Pazaratz noted that, instead, SB attended the motion as an “agent” for the ex-husband, and asked the court to consider receiving a supplemental affidavit on behalf of the ex-husband, another document signed by yet another lawyer who did not have personal information about the matter.

Affidavits

Justice Pazaratz noted that:

There have been a number of recent decisions expressing the court’s very strong disapproval of the apparent growing practice of affidavits being filed by lawyers or by legal staff.   Among the instructive cases:  Pavao v. Ferreira 2018 ONSC 1573 (CanLII), 2018 ONSC 1573 (SCJ); CAS v. N.A.-M. 2018 ONSC 978 (CanLII), 2018 ONSC 978 (SCJ); Ceho v Ceho, 2015 ONSC 5285 (CanLII), 2015 ONSC 5285 (SCJ).

Based on these cases, some basic principles on the use of affidavits in family law proceedings have emerged, including, in Justice Pazaratz’s words:

• There are very few circumstances in which lawyers – or staff members of law firms – should be filing affidavits on behalf of parties, in contentious proceedings.  This should be limited to summarizing non-contentious facts or documents, or providing an agreed upon chronology.  On some procedural motions a lawyer’s affidavit might assist in focussing on the legal issue.
• But as a general rule – particularly in family court (and especially in family proceedings relating to children) — parties should always file their own affidavits setting out their first-hand knowledge, observations and experiences.  If there are unique circumstances in which a party cannot file their own affidavit, those circumstances should be specifically set out.
• There is no Rule that allows lawyers – or lawyers assisting lawyers – to file affidavits on behalf of parties, setting out contentious factual information, or advancing evidence dealing with the substance of a claim.  If there’s any doubt about what’s contentious and what’s not, the safer course is to simply have the party file an affidavit setting out all of the evidence.
• Motions are very important in family proceedings.  Even when proper affidavit materials are filed, the court must still struggle with dealing with untested materials.  It is inappropriate to needlessly add a further layer of uncertainty, by allowing lawyers to tell the story and advance the narrative, in circumstances in which the party could and should be telling their own story.
• Affidavits by lawyers or legal staff are problematic because they are not so easily subject to scrutiny.  Parties can be cross-examined on their affidavits.  But it is much more cumbersome and impractical to raise the issue of cross-examining lawyers or legal staff.
• Speaking plainly, having a lawyer or legal staff member swear an affidavit on behalf of a client is lazy, and breaches counsel’s responsibility to advance a client’s evidence in a proper and admissible manner.

The Decision

Justice Pazaratz noted that, while making no comment as to the merits of the ex-husband’s position:

• his motion relied entirely on the affidavit of a lawyer which is “completely inappropriate and presumptively inadmissible”;
• as a lawyer, SB should have known this;
• the ex-husband and his agent/lawyer “must assume responsibility for the fact that they insisted on arguing a motion where their defective materials meant that there was no possibility of succeeding”;
• counsel in all cases should “clearly understand that the court will not allow lawyers to simply subvert the Rules by having lawyers/law clerks advance vitally important information by signing affidavits, in circumstances where the client could and should have set out the facts”.

Justice Pazaratz ultimately dismissed the ex-husband’s motion.

The challenges of marriage and family can sometimes lead down unexpected paths. No one expects or plans to find themselves in need of a family lawyer, contemplating separation or divorce, having to fight for the custody of their children, or battling over spousal support, but unfortunately it does happen. If and when it happens, it helps to know where to turn. With more than 25 years of experience guiding husbands and wives through the stress and strain of separation, divorce, support and custody, Jason P. Howie understands your frustrations and fears. To speak with an experienced Windsor family law lawyer, call 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.