Tips, Tricks and Traps in Drafting Evidence for Family Law Proceedings 1

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1 Tips, Tricks and Traps in Drafting Evidence for Family Law Proceedings 1 Prepared for: Law Society of Saskatchewan, Continuing Professional Development For Presentation In: Family Law Seminar Evidence in Family Law Proceedings September 10 and 11, This paper was written by Sean Sinclair with assistance from Caolan Lemke.

2 In considering what topic to address in this paper, I was greatly assisted by some materials generously provided to me by my co-presenter, the Honourable Madam Justice D.L. Wilson. Most notably, Justice Wilson included her own paper entitled Affidavits and Costs. After having read that paper and realizing that I had absolutely no chance of improving upon it, I decided to go a different direction. The focus of this paper will be on practical considerations in drafting affidavit material. Throughout this paper, I will spend much less time considering the various rules of evidence and will focus instead on some (hopefully) helpful advice on affidavit writing. It is quite possible that this paper will be more useful for junior practitioners (if it is helpful for anyone) than for seasoned, hardened veterans of the family bar. The Importance of Following the Rules of Evidence and the Rules of Court Before going into practical tips, tricks and traps of drafting affidavits, it is important to highlight that nothing will undermine your affidavit materials and anger judges more than flagrant disregard for the rules of evidence and the Rules of Court. The family law bar, in particular, has had significant issues with following basic evidentiary principles. This is apparent given the number of papers, presentations and lectures provided by members of the bar and the judiciary to our family law practitioners about evidentiary issues. In the recent past, I recall discussions about family law evidentiary problems from Justice D.L. Wilson, Justice Y.G.K. Wilkinson and Justice J.A. Ryan-Froslie. There is also a significant body of Saskatchewan case law discussing family law affidavit issues, which is thoroughly canvassed by Justice Wilson in her aforementioned paper entitled Affidavits and Costs. If this were not a continual challenge for practitioners, one would presume that the constant reminders of the basic, unchanged Rules of Court would be unnecessary. However, practitioners continue to be challenged by issues, including: 1. Hearsay; 2. Irrelevancy; 3. Speculation; 4. Argument; 5. Opinion; and 6. Scandolous or vexatious material. 2 Now, somewhat surprisingly given the concern expressed about improper affidavit materials, the Court has not generally penalized offenders with large costs awards. Attached at the conclusion of this paper is a chart of reported decisions detailing the costs awarded by the Court on successful applications to strike affidavit material. 2 When I am discussing the problems encountered with family law affidavit material, I am by no means suggesting or implying that I have never been guilty of this conduct. As my mother would say though Do as I say; not as I do.

3 The chart shows that the costs awarded on successful applications vary from nothing to $1,000. The most notable case is likely Antoine v. Campbell, 2010 SKQB 466, where Justice P.A. Foley ordered costs of $1,000, half to be paid by the lawyer personally. Presumably, the reluctance of ordering significant costs in these cases is that a client should not bear the consequences of the sins of his or her lawyer. However, it is debatable whether practitioners will make significant changes when there are no consequences to transgressing the rules. Tips, Tricks and Traps Now that I have chastised both practitioners and the judiciary and likely caused both to cease reading this paper, I will move on to the focus of my topic. There are a number of suggestions that I can make with respect to drafting affidavit materials. These suggestions are not, by any means, original or novel. A. Tips and Tricks Some of the tips and tricks that I would highlight are: 1. Dealing with Issues of Hearsay In an interim application, you have no ability to subpoena witnesses, which makes it difficult to get all of the relevant information before the Court. For instance, teachers, social workers, police officers, doctors and other professionals are often reluctant to involve themselves in a family court action. However, if the application is truly an interim application (no final relief is being requested), hearsay in limited circumstances and subject to certain parameters is permissible. The relevant Rules of Court indicate: Affidavit evidence (1) An affidavit must be confined to the statement of facts within the personal knowledge of the person signing the affidavit, except where this rule provides otherwise. (2) An affidavit must not contain argument or speculation. (3) An affidavit may, in special circumstances, contain information that the person learned from someone else if: (a) the application on which the affidavit will be used is for an interim order, or for a matter that will not determine the final outcome of the family law proceeding; and (b) the source of the information is identified by name, the affidavit states that the person signing it believes the

4 information is true and the circumstances that justify the use of information learned from someone else are stated. As can be seen from the foregoing, it is not necessarily inappropriate or improper for an affidavit to contain hearsay if the application is for an interim order. However, care must be taken in how one drafts the hearsay material and, in particular, the affidavit should: 1. Indicate the source of the hearsay information. It is best practice to name the source and the date on which the hearsay was received, although there are examples where the Court has allowed more generalized indications of the source of the hearsay information. For instance, in Gusikowski v. Gusikowski, 2001 SKQB 139, the Court allowed some hearsay information coming from an unnamed RCMP investigator. 2. Advise as to the circumstances that justify the use of the information learned from someone else. In Gusikowski, supra, the special circumstances were that an RCMP officer would not sign an affidavit (although that was not specifically mentioned in the affidavit in question). Thus, information from doctors, social workers or teachers might be able to be tendered through a client s affidavit, but the client must detail the special circumstance that would warrant admission of the hearsay material. Often that might be that the source of the hearsay information was asked to sign an affidavit, but, because of a policy to refuse to sign such affidavits (such as with social workers), an affidavit could not be procured from such individual. 2. Make Your Affidavit Material Follow Logically Most of the time, at least within a heading or topic area, affidavit material should be sequential. Jumping around from year to year and month to month makes an affidavit very confusing. As Justice R.S. Smith recently noted to counsel in chambers it is best if a judge doesn t read your affidavit and say what just happened?. 3. Make Use of Headings Often, interim chambers application deal with multiple issues: interim custody, interim child support and interim spousal support being the most common. Affidavits must contain information about all of the matters at issue. The result is that a well-drafted affidavit likely should be broken into parts so that the issues and information are not confusingly co-mingled in a single affidavit. For example, a client will often provide a brief history of parenting matters that might date back a few years. Through that discussion, it is not generally advisable to intersperse income tax returns, corporate financial statements and other documents relevant to income determination, even if they follow sequentially by date.

5 Headings can assist with organizing and simplifying the affidavit material. Wellused and defined headings will explain to a decision-maker why the information is relevant and what issue it is relevant to. 4. When Responding to Affidavit Material, Reference the Allegation, not only the Paragraph Number I would recommend that, if you are intending on disputing or addressing an allegation in an affidavit filed by the party opposite, you reference the allegation that you are responding to, not simply the paragraph number. Our family law judges are, from my experience, extremely well prepared and read affidavits carefully. However, expecting them to cross-reference and leaf between different affidavits to understand what you are responding to is a bit much. 5. Special Consideration Should be Given to Electronic Communication It is increasingly common for affidavits to include as exhibits electronic communication, such as text messages, Facebook postings and tweets. Some considerations that you should give to such evidence include: 1. Is the decision-maker likely to understand the origin of the electronic communication? I have been advised that in a recent trial, one of the members of our judiciary asked what a text message is. Do not assume that judges are familiar with all of the various forms of electronic communication. Some explanation about the source of the information might be in order, especially if you are potentially appending electronic communications from a slightly more unconventional source. 2. Do you want the judge to read all of the material in depth or are there portions that you wish to highlight? I would recommend that, within the text of the affidavit itself, you may want to highlight the specific portions of the electronic communication that you believe are relevant. Text messages and other electronic communication are often barely recognizable as English, so I think it is prudent (and kind) to advise the judge as to which portions of the electronic communication are pertinent. 3. How was the information obtained by your client? Consider whether its retrieval involved either a breach of privacy or the Criminal Code. Keep in mind that Saskatchewan has The Privacy Act, R.S.S. 1978, c. P-24, which creates a statutory claim for breach of privacy. Further, the recent Ontario Court of Appeal decision in Jones v. Tsige, 2012 ONCA 32, indicates that there is a common law right to privacy which can be the basis of a civil claim.

6 B. Traps Some of the traps (or more accurately, the things to avoid) that I would highlight are: 1. A Response Affidavit Should Not be Merely a Reply to the Applicant s Affidavit A common issue that I see, particularly from junior counsel, is to draft a response affidavit as a paragraph-by-paragraph reply to each allegation in an applicant s affidavit. A respondent to an application is not limited to simply responding to each allegation in the applicant s material. Rather, it is an opportunity to tell the client s own story, while also responding to the applicant s materials. An opportunity to frame the issues in your own manner is often lost if you are simply responding to each paragraph in the applicant s affidavit. 2. There is No Percentage in Length, nor in Volume A 200 paragraph affidavit in an interim application is rarely advisable. According to the purveyor of all well-researched papers, Wikipedia, most adults are unable to sustain their attention on one thing for more than 40 minutes at a time. This increases if the task is enjoyable and decreases if it is not. I am willing to go out on a limb and suggest that reading a 250 paragraph affidavit with 4 more supporting affidavits from family members would not be considered enjoyable, even to a seasoned family law judge (or perhaps especially for such a person). A concise affidavit that covers the relevant material and avoids the pitfalls of morals and motives is a work of art. Frankly, such an affidavit is going to be significantly more persuasive than a 100 paragraph recitation of your client s dreams, worries and feelings. Recall also that our new Rules of Court specifically indicate that the goal of the Court is promote justice in a cost effective way. Filing hundreds of paragraphs of questionable content seems to run counter that goal. The new Rules indicate: 1-3(1) The purpose of these rules is to provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way. (4) Resolving a claim justly in a timely and cost effective way includes, so far as is practicable, conducting the proceeding in ways that are proportionate to: (a) the amount involved in the proceeding;

7 (b) the importance of the issues in dispute; and (c) the complexity of the proceeding. Frankly, the majority of family chambers applications are not terribly complex and frequently the money at issue is not significant. As a result, consideration should be given to the principle of proportionality to the matters at issue. 3. Remember the Duty of Utmost Good Faith and to Provide All Relevant Information if Applying for an Ex Parte Order This is perhaps more of a pet peeve than truly a trap, but ex parte applications are likely sought more frequently in family law matters than in any other field of law. As a result, it is important to highlight that, when applying for ex parte relief, there is a duty on affiants and their counsel of good faith and full and fair disclosure. In applications on notice, it is typical that an affiant will provide only or mostly the facts which support his or her case. This will not typically jeopardize the fairness of the proceedings because the other side has an opportunity to advise the Court of the facts supporting their own arguments. On the other hand, ex parte applications are made without notice and without the ability to answer by the party opposite. The stakes are often substantial with individuals being removed from their houses, their children being taken away and being restrained from attending areas of a city. Although not a family matter, the case of Agracity Ltd. v. Skinner, 2009 SKQB 362 is instructive. In that case, the plaintiff had obtained an Anton Piller order, but did not provide a fair and balanced assessment of the facts, nor the law in support of such an application. In an application to set aside the ex parte order, Justice G.D. Dufour provided a stinging rebuke of the material filed in support of the ex parte application, stating: 109 All ex parte applications require the moving party to provide full and fair disclosure, but the burden on the plaintiffs applying for an Anton Piller order is even greater given, the draconian nature of the remedy. 110 That which was put before Dovell J. was not balanced. The lack of balance pervades the entirety of the thick bundle of materials the plaintiffs filed, from the affidavits through the memorandum to the judge to the notice of motion that was filed contemporaneously with the Anton Piller application. The plaintiffs left out or downplayed the material facts and law that

8 supported the defendants' case, belying the weakness of their own. 134 It is not objectionable for counsel to put their spin on the law so that their client's position is presented in the most favourable light - so long as the other side is represented by counsel (who will do the same thing). That is what lawyers do. 135 On ex parte applications, however, the duty of full and fair disclosure requires no spin and complete fairness; counsel must be vigilant to ensure they have presented the law fully, fairly and completely and inform the Court of any points of law that favour the other side (United States v. Friedland, supra). 139 In conclusion, the plaintiffs and their counsel did not fulfill their obligation of full and fair disclosure, both in the treatment of the evidence and the law. They did not sufficiently heed the cardinal rule, which is stated succinctly by Groberman J. at para. 24 of Green v. Jernigan, 2003 BCSC 1097, 18 B.C.L.R. (4th) 366 (B.C. S.C.): "[a]bove all else, the plaintiffs must not, [on an ex parte application] exaggerate or misrepresent the strength of their case." They did, and I would set the Anton Piller order aside on this basis alone. The same principles apply in the family law context. Care must be taken in drafting affidavits in support of ex parte applications to provide fair and full disclosure of all of the relevant facts. Cases discussing the duty to provide full and fair disclosure in a family law proceeding include Pereira v. Pereira, 1995 CarswellOnt 2106, Neumeyer v. Neumeyer, 2005 BCSC 1259 at paragraph 13 and Bugera v. Schoenhals, 1997 CarswellBC 2305 (B.C. Master) at paragraph Settlement Discussions are Without Prejudice (Including Your Own Correspondence) Counsel, from my experience, generally have a good understanding that they cannot append without prejudice correspondence from opposing parties to their clients affidavits. However, not infrequently, lawyers append their clients own settlement proposals to their clients affidavits, presumably on the belief that the clients are entitled to waive their own privilege. This issue was recently discussed by Justice G.D. Dufour in the case of Tucker-Lester v. Tucker, 2012 SKQB 443, where he indicated that it is improper to append or

9 discuss any settlement discussions (subject to all just exceptions) including a client s own settlement proposals. In that regard, Justice Dufour indicated: 8 More illuminating, I suggest, is the policy reason for the privilege which, in turn, defines the scope of the privilege. Here is a thumbnail sketch: (i) At the heart of settlement privilege is the overriding public interest in favour of settling legal disputes: "...[t]his policy promotes the interests of litigants generally by saving them the expense of trial..." (Loewen, Ondaatje, McCutcheon & Co. c. Sparling, [1992] 3 S.C.R. 235 (S.C.C.) at para. 48.) More than 100 years ago Cameron C.J. of the Ontario Court of Appeal wrote in Pirie v. Wyld (1886), 11 O.R. 422, [1886] O.J. No. 188 (Ont. C.A.), at para. 18:... letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect a compromise, are inadmissible in evidence. It seemingly being considered against public policy as having a tendency to promote litigation, and to prevent amicable settlements. (ii) It is common sense that settlement is less likely if the parties do not engage in full and frank discussions; (iii) Few parties would initiate or participate in settlement negotiations at all if such could later be used to their detriment: "What sensible man would attempt settlement if it could be used against him at trial?" (William Allan Real Estate Co. v. Robichaud, supra). (iv) To provide the degree of comfort required to encourage parties to engage in frank discussions without fear of prejudice, the whole of the settlement process is protected: all communications in furtherance of settlement regardless of from which party the communication emanates from the first utterance or letter to the last. (v) In order to promote settlement, the privilege must be broadly construed such that the integrity of the settlement process is preserved: (a) settlement privilege can only be waived with the consent of both parties (Squires v. Corner Brook Pulp & Paper Ltd., supra; Leonardis, supra).

10 (b) the communication need not contain a settlement offer any communication designed or intended to explore settlement, or from which the Court might infer there are settlement communications contemplated or in the works, is protected (White v. F.W. Woolworth Co., supra). (c) the privilege is clearly an important one, and in cases of doubt as to whether the correspondence does relate to the negotiations, the Court should undoubtedly err on the side of protecting the privilege (Hansraj v. Ao, supra). 9 Against that backdrop, I return to the settlement proposal the respondent exhibited to his affidavit. I can divine no reason that the respondent would put it before the Court other than to attempt to leave the inference that: "my proposal is reasonable so I must be a good, reasonable parent; by failing to accept that reasonable proposal, she must be unreasonable and, therefore, not as good a parent." This is gamesmanship and nothing more. Gamesmanship fouls that which the policy seeks to promote. Relevance of settlement proposals 10 Settlement privilege aside, and with the exception of a few issues such as costs and limitation periods or when a party seeks to establish that there was a concluded agreement, I am hard pressed to come up with a situation where the existence of a settlement proposal would be relevant to an issue before the Court. The comprehensive custody and access proposal the respondent exhibited to his affidavit here does nothing to advance his cause. Slatter J. was faced with an almost identical situation in Leonardis and observed at para 10: [10] Even if the privilege was somehow to be removed from this letter, it is not relevant. It does not outline any facts. It is argumentative, and merely puts forward the position of one party. At best it is an editorialized prayer for the relief that one of the parties thinks the Court should grant Further in respect of relevance or the lack thereof, consider that settlement negotiations are conducted on the normal contractual basis of offer and acceptance: "if a contract is reached, the negotiations are superseded by the contract itself, and become irrelevant and inadmissible, and if no contract is reached, then the negotiations are, for that reason, irrelevant." (see: The Law of Evidence in Canada, supra, at para. 14,316; Newbery Energy Ltd. v. Amok Ltd. (1987), 62 Sask. R. 1, [1987] S.J. No. 685 (Sask. Q.B.).

11 As can be seen from the foregoing, it would be the extremely rare case where it would be appropriate to include any without prejudice communication in an affidavit. Conclusion A lawyer s job in drafting an affidavit is to set out the relevant information to persuade a judge to accede to his or her client s position. Your chances of doing so will improve if a judge understands the relevant information and is not angry with you for disregarding the relevant rules or making them read through hundreds of paragraphs of unnecessary information. Keeping some of these tips, tricks and traps in mind will hopefully assist in your ultimate goal of assisting your clients with their court applications.