Court File and Parties

COURT FILE NO.: FS-19-95996 DATE: 2020 07 13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

BERNARD UFUOMAH UKIRI Justin Clark, for the Applicant/moving party, justin@sdslawfirm.com Applicant

- and -

TENNILLE ELIZABETH ERSKINE Edosa Adams-Idode, for the Respondent/responding party, edosa11@hotmail.com Respondent

HEARD: June 10, 2020

ENDORSEMENT

Trimble J.

THE MOTION

1This motion was heard on an emergency basis pursuant to the Chief Justice of the Superior Court’s Notice to the Profession of 15 March 2020, as amended, and as supplemented by the Central West Region’s Notice to the Profession. Because of the Covid-19 pandemic, the motion was heard by Zoom videoconference.

2The husband seeks an order for the following relief:

a. an interim order granting the applicant/Father sole custody and primary residence of the children of the marriage, namely; Tejeri Ukiri, born 6 August 2008, and Tobore Ukiri, born November 17, 2011,

b. an interim order that the respondent shall have access or parenting time with the children of the marriage, as set out in the notice of motion dated May 20, 2020,

c. an interim order that the applicant shall have exclusive possession of the matrimonial home located at seven Vespahills Crescent, Brampton, Ontario, and its contents;

d. in order for leave, as necessary, in the interest of justice, to file materials including specifically the full and complete bank records of the respondent, in excess of the 10 MB limit, an order for costs on a full recovery basis, and post-judgment interest.

BACKGROUND

3The parties began to live together in 2006, were married on September 12, 2007, and separated on August 15, 2019. They have two children, Tejiri (11 years old) and Tobore (8 years old). Since separation, the parties have lived with Mother in the matrimonial home. Father has had considerable access, although no order is in place. The access appears to be on a week about basis.

4The parties separated after charges were laid against Father for assaulting Mother. Father disputes these charges. They remain outstanding.

5Since separation, Mother and children have lived in the matrimonial home.

6Father’s motion is triggered by the OCL’s report which was released to the parties on 17 March 2020, and which recommends at page 20 et seq. that Mr. Ukiri have sole custody of the children, and that they have primary residence with him. Ms. Erskine is to have access with the children not fewer than two weeknights per week when there are no extracurricular activities, from after school to 7 PM, and every Sunday from 11 AM to 7 PM, with additional access as arranged. The OCL also made recommendations with respect to holiday access.

DISPOSITION

7For the reasons, below, Father’s motion is dismissed.

THE POSITIONS OF THE PARTIES

Father

8Father says that he has been the primary caregiver for the children since their birth because Mother is a severe and chronic alcoholic who has been unable to look after the children’s day to day needs. He says that she has been convicted of driving while under the influence of alcohol on three separate occasions and her driver’s licence is under suspension. Notwithstanding these convictions, her excessive drinking has persisted. He points to other witness statements in Affidavits and to surveillance he conducted.

9Father also relies on the OCL report, page 22, at which the author says:

Collateral reports, including Tejiri, suggest that Ms. Erskine may be consuming alcohol in moderation, but at times this is still in direct violation of the [Petersen] order. This suggests that oversight is necessary to ensure that Ms. Erskine honors the order and puts the welfare of her children first. Supervised access however it may be less desirable for all involved in drawing on the support of family members and friends, who have an interest in the safety and security of the children, to provide oversight to Ms. Erskine and the children. Still, until Ms. Erskine has completed the counseling requirements of her conditions of probation, or the referral by her for the primary care physician, it is in the children’s best interest to have frequent and brief contact with their Mother.

10Further, Father says that he was wrongfully removed from the matrimonial home on August 15, 2019 because of false charges laid at the behest of the Mother. As a result of those charges he has had to incur thousands of dollars in legal fees to defend himself and therefore his suffering severe prejudice as a result of the false charges in addition to having been forced out of the home which he owns exclusively.

11Father submits that I should hold that the criminal charges are specious based on the OCL report, at page 20, where the author says:

[T]he matter of Mr. Ukiri’s culpability on this charge is still before the court. Yet, in regard to the personal collaterals, of those persons who have known and interacted with this couple, none make any claim of witnessing or being told about Mr. Curie physically abusing Ms. Erskine at any point in the relationship. Some warn that they believe Ms. Erskine has exaggerated the events of that day.

Mother

12Mother opposes this motion on a number of grounds. First, the motion is not urgent. There are no interests that are immediately imperiled. Second, she says that this is the third time that Father has come to court claiming relief based on his allegation that Mother continues to be an uncontrolled alcoholic. Third, the OCL report (upon which Father relies) is not correct. She has challenged its findings.

PROCEDURAL HISTORY

13Father brought a similar motion to this before Petersen, J. on November 15, 2019, on substantially similar evidence. He brought the motion as an urgent motion. Petersen, J. dismissed Father’s motion commenting that “The motion materials, much of it is dated and the more recent allegations have not yet been answered by Ms. Erskine, and do not rise to the level of concern that would justify the interim orders sought by Mr. Ukiri.” As a precautionary measure, Petersen, J. ordered that Ms. Erskine not consume alcohol immediately before or during the time she has the children.

14A month later, Father raised the same issues in response to Ms. Erskine’s motion for permission to travel with the children and her family to a resort in Cuba, where alcohol would be readily available and in great supply. Doi, J. heard that motion on December 2 17, 2019. In addition, Father alleged that Mother had breached the terms of Petersen, J.’s no alcohol order.

15In allowing Ms. Erskine to travel with the children, Doi, J. commented “the applicant’s main objection to the respondent’s proposed travel relates to the history of alcohol abuse and the concern that the respondent will likely abuse at the resort (i.e., where “alcohol will be available in abundance at the resort”.). Doi, J. noted that Ms. Erskine had traveled with the children in March 2019 to a Blue Mountain ski resort with the same family members she was reposing to travel with in December. Doi, J. stated “… From the evidential record as it stands, I am unpersuaded that the respondent has breached the terms of Peterson, J.’s order directing her to abstain from consuming alcohol while caring for the children and for three hours beforehand… Accordingly, I find no basis to conclude that the respondents alcohol related issues raise a significantly serious risk to restrain her travel on the proposed trip to Cuba out of concern for the safety or welfare of the children.”

16This matter was the subject of two case conferences: 14 January 2020 and 10 February 2020. Neither were held without the benefit of the OCL report.

NEW EVIDENCE ON THIS MOTION

17As indicated, above, most of the evidence on this motion was before the Court on the two other occasions. On both occasions, the evidence failed to persuade the Court to act as Father requested. I have reviewed that evidence independently and reach the same conclusion. The new evidence also does not persuade me to accept Mr. Ukiri’s position.

Surveillance

18The new evidence on this motion includes surveillance that Mr. Ukiri commissioned which allegedly shows that on December 4, 2019, Mother kept the children of school, and took the children to the Wok of Fame restaurant where she drank wine in the presence of the children.

19It appears that given Petersen, J.’s comments about the lack of persuasiveness of the evidence before her, Mr. Ukiri determined to obtain more evidence. He retained the services of Executek international to conduct surveillance on Mother.

20Mr. Darnley, in his report dated December 8, 2019, confirmed that he began surveillance of Ms. Erskine as requested of him. Specifically, he was instructed to “conduct investigative and surveillance services in relation to Mr. Ukiri’s ex-wife, in relation to her daily behavior, to include but not limited to, her possession and consumption of alcohol.”

21The investigator’s is conclusory. Mr. Darnley stated that Mother was drinking wine while the children were with her at the Wok of Fame. He based his conclusion on the fact that he observed her, and filmed her, drinking from a wine glass and pouring liquid from a carafe into the wine glass. He made no observations that suggested she was intoxicated or in any way compromised in her thinking or judgment, whether anyone else was drinking from the same carafe, how much the carafe held, or whether others were intoxicated.

22When Ms. Erskine explained that she was drinking apple juice or nonalcoholic wine at the Wok of Fame, Mr. Ukiri confirmed that he or those on his behalf attended the Wok of Fame and was told that they did not serve apple juice or nonalcoholic wine.

23It is inappropriate to admit, on this motion, the surveillance evidence.

24For public policy reasons, Courts have generally taken a dim view of surveillance when used in family proceedings. Surreptitious recordings by parents of the children and/or the other parent, whether done by the party or an investigator, is repugnant, and such evidence is only admitted in family cases if there is a “compelling” reason to do so. As Sherr J. held in Hameed v. Hameed, 2006 ONCJ 274, at paras. 11 and 13:

“Surreptitious recording of telephone calls by litigants in family law matter should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the court work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process. …

The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so.

In Sordi v. Sordi, 2011 ONCA 665, the Court of Appeal made it clear that a trial judge has broad discretion when deciding whether to admit into evidence taped recordings of conversations provided that there is a proper consideration of the “sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings” and an “assessment of the probative value of the tapes in relation to the issues before him”.

25In Seddon v. Seddon, [1994] B.C.J. No. 1062 (S.C.), Thackray, J. referred to surrupticious recording in family disputes an “odious practice”. It is not one that should be encouraged.

26Snowie, J., in N. v. N., 2015 ONSC 3921, gave a thoughtful analysis when she said:

I ruled that this evidence was inadmissible. Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

27I agree with Vogelsang, J., who said in paras. 5 and 6 of Tatarchenko v. Tatarchenko, [1998] O.J. No. 4685, 4374 (Ont. Fam. Ct.) that there is a wide scope for potential abuse in this practice.

28The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge.

29The court in deciding whether to admit such evidence will need to weigh the suspect circumstances of the obtaining of the evidence against its probative value. The party seeking its admission should establish a compelling reason for doing so.

30I agree that in most family cases, the surreptitious taping of the other party should be discouraged. I also agree that much of the reasoning behind the desire to discourage such conduct is that the parties should build trust in the other to be able to parent after separation. Admitting such evidence encourages the parties to undermine that trust, especially in the eyes of the children.

31I am not satisfied that the applicant Father has established compelling reasons why I should consider the surveillance probative on this motion. Indeed, it is conclusory with respect to the issue of alcohol. Its probative value on this motion does not its prejudicial effect, especially given the manner in which it was surreptitiously obtained.

OCL Report

32I have considered the contents of the OCL report on this motion. I have not given it great weight at this interlocutor very step.

33As a matter of law, the Court must act with caution in following an assessor’s or the OCL report and recommendations at an interlocutory stage. An Assessor’s or the OCL’s opinion is only one piece of evidence best weighed at trial, against all other evidence. Such opinions should only be adopted at an interim proceeding where the circumstances require that the report be implemented before a full assessment at trial (see Genovesi v. Genovesi, (1992), 41 R.F.L. (3d) 27 (Ont. Gen. Div.), Grant v. Turgeon at para. 25, Bos v. Bos, 2012 ONSC 3425 (S.C.J.) at para 23-24).

34In Glover v. Glover, 2013 ONSC 4068 (S.C.J.), Justice Ellies set out the manner which courts should consider custody/access assessments on interim motions:

15In a line of cases commencing with Genovesi v Genovesi, (1992), 41 R.F.L. (3d) 27 (Ont. Crt. (Gen. Div.)), it is been held that recommendations contained in a custody assessment ought to be used only at trial, and not at the interim motion stage, absent exceptional circumstances (see Medvis v. Peters, at para. 9; Mayer v. Mayer, at para. 24; Forte v. Forte, at para. 7; Kerr v. Hauer 2010 ONSC 1995, at para. 7). This line of cases was thoroughly reviewed recently by Mitrow J. in Bos v. Bos, 2012 ONSC 3425, who concluded (at para. 23) that:

...the jurisprudence has evolved to a point that although the general principle enunciated in Genovesi continues to be well-founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. In fact, “exceptional circumstances” findings were not made in either Forte or Kerr.

35At paragraph 26 of his decision, Mitrow J. set out some of the factors that should be considered where a court is asked to make an order regarding interim custody and access, where an assessment has been prepared, and where, as here, the court has not been asked to find that exceptional circumstances exist. These include:

a. How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b. What other evidence is before the court to support the change requested?

c. Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

d. Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

36In this case, many of the OCL’s factual findings and conclusions are in dispute. Further, the OCL concludes that Ms. Erskine continues to abuse alcohol, which is a conclusion which is not clear based on evidence before me.

Financial Disclosure

37Mr. Ukiri points to Ms. Erskine’s financial disclosure which indicates transactions at the local LCBO, which Mr. Ukiri says indicates that Ms. Erskine was spending thousands of dollars on alcohol. This issue cannot be resolved at a motion. Mother response to this by saying that since she has no driver’s licence she used the LCBO as an ATM, by making cash withdrawals. This explanation rests on her credibility.

CONCLUSION ON ALCOHOL RISK

38Alcoholism is a terrible disease. It has been the ruin of many marriages, many child parent relationships, and many friendships. It is ruined people’s careers and social relationships. It has killed many of those who suffer from it.

39Alcoholism, on the other hand, is not a terminal disease. Thankfully, many who suffer from it conquer it. Their victories, however, are not one time victories. Alcoholics are always alcoholics. They fight their disease, daily. A great many remain sober for their lives.

40In this case, Mr. Ukiri’s motion, both in terms of urgency, and the merits, hinges on his view that Ms. Erskine’s alcoholism continues, unabated. Mr. Ukiri speaks in the affidavits filed on the three motions of Mother’s long history of alcoholism and his attempts to contend with it.

41I do not accept, as Father’s position that Mother’s alcoholism continues unabated. This issue requires a trial. I say this for several reasons:

1. Most of the evidence on which Mr. Ukiri relies was before the Court on the 15 November and 17 December motions. Neither of those Judges were persuaded by that evidence to conclude that the children were in any danger, Further, Doi, J. was “unpersuaded” by the evidence before him that Mother had violated Petersen, J.’s no alcohol order of 15 November, 2019.

2. The evidence concerning Mother’s alcohol use since separation point is highly contradicted and contested. Mother says that she has complied with the requirements imposed by her release conditions on her criminal charges and continues to take counseling. She says that she has remained sober and abided by the November 15, 2019 no alcohol order of Petersen J. Father’s evidence to the contrary is limited.

3. Father relies on surveillance evidence obtained surreptitiously, a practice which the court has discouraged as odious and destructive of family relationships in circumstances where they are already fragile. Evidence thus obtained should only be admitted in the clearest of cases where it is in the best interests of the children to do so. Mr. Ukiri has failed to meet his onus in this regard. In any event, the evidence it is not very persuasive. Mother has explained it. The conflict between the surveillance (if admitted at trial) and Mother’s explanation of it must be addressed at trial.

4. Father relies on the OCL report which is contested, and which, as a matter of law, should only be relied upon on an interim motion where the report is clear and it is in the best interest the children to do so.

42In this case, I have considered anew all evidence put before Petersen, J and Doi, J., as well as the newer evidence. I am not persuaded that the Mother’s alcoholism is as uncontrolled as Father says. I am not persuaded that Mother’s alcoholism (assuming she continues to drink) poses a risk to the children. With respect to the OCL report, applying Glover, above, I am not satisfied that the findings of fact and the opinion the OCL expresses are so clear such that a change in the status quo is required.

URGENCY

43In my 13 May 2020 endorsement, I made the determination, prima fascia, that the motion was urgent.

44Applying the test for urgency set out by Kurz, J, in Thomas v. Wohleber, 2020 ONSC 1965, at paras. 31 to 38, I have concluded on a full record that this motion is urgent. The motion materials raise an immediate concern about the safety of the children that cannot wait resolution of an at another date. Because it affects the interests of children is therefore serious. It is not speculative and is clearly particularized.

45This finding merely addresses whether the motion should be before the court under the 15 March 2020 Notice to the Profession. It does not determine the decision on the merits of the motion.

THE MERITS OF THE MOTION

46Father’s motion is based on his view of Mother’s continued alcohol use, and that her continued use of alcohol poses a danger to the children. Because of my primary finding in this respect Father’s motion must fail.

Interim Sole Custody and Primary Residence

47Father asks that he have interim sole custody of the children and that their primary residence should be with him. The latter request can only be implemented if he has sole possession or occupancy of the matrimonial home. Thus, one cannot separate the two heads of relief he claims. Since the test for each relief differs somewhat, I will treat them separately.

48Custody and Access flow from s. 16 of the Divorce Act. The best interests of the child are paramount. S. 24 of the Children’s Law Reform Act is a useful guide to determining the best interests of the child.

49The Court must always remember that stability is usually in the interests of the children, and it ought not to be disturbed except for good reason (see: Kimpton v. Kimpton, [2002] O.J. No. 5367 (SCJ)). Further, the Court must chose the access and custody regime that best promotes the healthy growth, development and education of the child (see K.(K.) v. L.(G.), [1985] 1 S.C.R. 87, at para. 101, and Thompson v. Drummond, 2018 ONSC 1975, at para. 45).

50Having found that Father has not persuaded me that Mother’s alcoholism is uncontrolled, I do not conclude that it is in the best interests of the children to award Father sole interim custody and that the children should reside primarily with him.

51That there is no order for custody and access is of concern and should be addressed.

52Father says that the access arrangement is approximately a week about arrangement. Specifics are lacking.

53Mother does not give details of the access arrangement currently in place except that she says that Father’s access is “unfettered”. On the other hand, she complains that Father does not take precautions to protect the children from exposure to Covid-19. Yet she asks for an order for weekend access for Father on a 4-week rotation without asking for any order addressing her professed concern about Covid-19.

54I put little weight on Mother’s concerns about Father’s failure to take precautions with the children to protect them from Covid-19. It is based on hearsay and speculation. I caution both parents, however, that both have a responsibility to follow the law, and follow reasonable public health advice about protecting themselves and the children from exposure to Covid-19.

55Pending further order of the Court, I order that:

1. The parties shall have joint custody of the children.

2. Access shall be week about, from Sunday at 7 PM to Sunday at 7 PM.

3. Mr. Ukiri’s first week about week shall commence at 7 PM, 19 July 2020.

4. During each parent’s week, the parent with the child will be required to make all reasonable daycare arrangements that may be necessary.

Exclusive Possession of The Matrimonial Home

56Kurz, J., in Alsawwah v. Afifi, 2020 ONSC 2883 concisely set out the law with respect to exclusive possession as follows:

15. Under s. 19 of the Family Law Act (“FLA”), “[b]oth spouses have an equal right to possession of a matrimonial home.” However under s. 24(1), the court can grant one of the spouses exclusive possession of that home. The relevant provisions state:

Order for possession of matrimonial home

24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the home for the use of a spouse or child;

16. Under s. 24(2), the court can make any of the s. 24(1) orders set out above on an interim basis.

17. The criteria for making that order are found in s. 24(3), as follows:

Order for exclusive possession: criteria

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

18. Factors (b) and (d) are irrelevant to the determination of this motion as there are no existing orders or written agreements between the parties. Those two factors will not be further considered in this decision.

19. In determining the best interests of a child, s. 24(4) requires the court to consider:

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained.

These two factors are child-centric in that they look at the effect of the order from a child’s point of view. However they are not the only best interests factors that a court may consider.

20. Both parties refer me to the decision of McGee J. on Menchella v. Menchella, 2012 ONSC 6304. This is the second decision by McGee J. regarding interim exclusive possession in the same Menchella proceeding. In this decision, the court determined that the definition of violence for the purpose of s. 24(3)(f) was not limited to physical violence. It could also include verbal abuse, threats, and intimidation. As McGee J. stated:

27 There can be no doubt that the vitriolic communications constitute "violence" as intended within Section 24(3) (f) of the Family Law Act. They are threatening, intimidating and were intended to be taken seriously.

21. McGee J. relied on the decision in Hill v. Hill, 1987 CarswellOnt 238 (Ont.Dist.Ct.), where FitzGerald J. offered a statement almost 32 years ago that remains true today, that:

Violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband's behaviour and impinges on her mental and physical health, violence has been done to her emotional equilibrium as surely as if she had been struck by a physical blow.

22. In the mix of factors relevant to the determination of an order for exclusive possession, the child’s best interests are the paramount consideration (Menchella at para. 33).

23. The risk of a child even contemplating suicide can be a best interests factor that tips the scales in favour of an order of exclusive possession (Leckman v. Ortaaslan, 2013 ONSC 3324, 2013).

24. At the same time, the court must consider that an order for exclusive possession can have what McGee J. described as a “dramatic” and “highly prejudicial” effect on the dispossessed spouse. Where the decision must be based on findings of credibility only available at trial, the order should not be made. (Menchella v. Menchella, 2012 ONSC 1861 [2]).

57Father relies heavily on Gonales v. Trobarovic, 2014 ONSC 2468 in support of his claim that he should have exclusive possession of the home. He owns the home and pays the bills. Leaving Mother with effective de facto exclusive possession interferes with his rights as owner.

58In Goncalves, Price, J.’s order giving Father exclusive possession relied on a number of findings that do not apply here. Price, J.’s principle finding was that there was “exceptionally strong” evidence that the judicial interim release order that restricted husband’s access to his property was not correct. I have no such evidence and made no such finding.

59I agree that the primary residence of the children should not change. I also agree that the children’s best interest is served by leaving them to live in their current home.

The Approach To This Motion

60The parties’ approach to this motion requires comment.

61The parties’ approach to this motion is the exact opposite of how parties should approach motions in the Covid-19 pandemic period.

62The Chief Justice’s Notice to the Profession of 15 March, 2020, as amended, found at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/#3_Manner_of_Hearing, says, with respect to filings:

The Court expects parties will only submit brief materials to allow for a fair, timely and summary disposition. Emailed filings cannot exceed 35MB. If the size of electronically filed material exceeds 35MB, further emails may be sent within the 35MB maximum. Every effort must be made, however, to limit filed materials to only those necessary for the hearing.

Filings must also comply with restrictions that have been placed on the length of material that can be submitted in connection with each event, such as limits on the number of pages for an affidavit or conference brief. Refer to the relevant regional Notice for these requirements. (Emphasis added)

63Instead of filing focused, short affidavits and facta, the Affidavits and facta were prolix and meandering. In their affidavits and their facta both parties quoted liberally from their affidavits filed on the two previous motions. Both then included as exhibits to their affidavits the affidavits and exhibits from which they were quoting. In order to bring their factum within the 20 page limit set out in the Central West Practice Direction, they reduced their margins, font size and line spacing. The record was inordinately long. I counted 500 pages in the record at which point I stopped counting, leaving a considerable portion of the record uncounted.

64In addition to the restriction on filings, in my endorsement of 13 May 2020 I told the parties that they would have 20 minutes, each, to make submissions. At the hearing, they took umbridge and, rather than being more surgical in their submissions, sped up their presentation.

65The parties’ overall tone was over the top. The materials were written with shrill voices, full of invective, replete with position, but light on fact.

66I reminded the parties that the Court has stated bar several times that litigation had to be pursued in a different way in the Covid-19 period. I do so again, now.

67I remind them of what Justice Kurz had to say on this topic in a case with striking similarity to this one: Alsawwah v. Afifi, 2020 ONSC 2883

Introduction

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.

2. 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.

3. 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.

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 dutybound 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. [Footnote 5: Many of those obligations are spelled out in the Law Society of Ontario’s Rules of Professional Conduct (see. Ch. 1.1 and Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772 (S.C.C.)) as well as r. 2(2) and (3) of the Family Law Rules)]

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:

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

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

111. 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”.

112. 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.

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

114. 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.

115. 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.

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

117. 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.

118. 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.

119. 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.

120. None of these comments should be taken as a comment on present counsel. Nor should they be seen to minimize the kind of resolute advocacy that the court has come to expect from so many of its best lawyers. That type of advocacy is often necessary and valued. But even then, rhetorical excess is the enemy of good advocacy.

68In Vasilodimitrakis v. Homme, 2020 ONSC 2084, Bondy J., said that “…high conflict cases must always be approached with a great deal of caution. … It follows that there is an overarching duty on the part of counsel and the court to ensure that the level of conflict is minimized to the greatest extent possible in order to best serve the best interests of the child. I reminded counsel of the importance of explaining that to their clients.” (para. 21)

69In Ribeiro v. Wright, 2020 ONSC 1829, Pazaratz J., addressed a case in which a custody and access order, pre-Covid-19 Pandemic, was not followed since the advance of Covid-19. He said several things that all counsel should remember:

6 … This is an extremely difficult and stressful period for everyone.

9 … We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children.

10 … In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

19 Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system. Despite extremely limited resources, we will always prioritize cases involving children. But parents and lawyers should be mindful of the practical limitations we are facing.

22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.

27 …

e. Right now, families need more cooperation. And less litigation.

30 None of us have ever experienced anything like this. We are all going to have to try a bit harder – for the sake of our children.

Released: July 13, 2020 Trimble J.

COURT FILE NO.: FS-19-95996 DATE: 2020 07 13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

BERNARD UFUOMAH UKIRI Applicant

– and –

TENNILLE ELIZABETH ERSKINE Respondent

ENDORSEMENT

Trimble J.