Gary Joseph   Nov | 2024

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

Justice Mohane Sharma’s recent decision in Bah v. Diallo, 2024 ONSC 6500, calls out a practice that I have railed against for years. On a motion for relocation and in response to a request to adjourn, the court had the opportunity to comment on the now somewhat ingrained practice of arguing your motion by affidavit (most often of the client). Many family lawyers now go so far as to include case references and statutory citations in affidavits “argued” by clients. Perhaps I was guilty of this at times, but it really is poor practice and, happily, Justice Sharma directly comments on this in granting the adjournment.

In considering the issue of costs Justice Sharma makes no bones about saying that “affidavits are to contain facts, not argument or legal authorities.” Nothing unclear about this. Stop it! Many times in the past, I have looked forward to questioning on an affidavit wherein the client cites authorities that they likely have no clue what they are about or why the authority is quoted. Lawyers should be embarrassed about this practice, and now we have unequivocal comment from the bench on this practice. Note: as always with these articles, some reader is going to send me a past affidavit prepared by me where I too was guilty of this practice. Mea culpa … now move on and let’s all get this right from now on.

A justice I am particularly fond of based on her years of outstanding work on the bench raised with me recently an ongoing concern of mine (and hers, of course). That is the practice of attaching lawyers’ letters to affidavits. This practice has now become rampant, but other than perhaps arguing for judgment based upon the exchange of letters, (OMG, here I must admit an early loss of mine in the Court of Appeal; see Geropolous v. Geropolous, (1982), 35 O.R. (2d) 763), this practice must stop. A short time ago, I reached out to ask an opposing counsel if he would be getting off the record as he filed an affidavit that was no more than his client attaching six of his long verbose narratives in letter form of events that he had no way of knowing personally, in support of relief claimed on a motion. Opposing counsel was suitability insulted by my request and stayed on.

Your letter is evidence only of the fact that it was sent and perhaps received. The contents are generally hearsay and inadmissible, and you cannot be a witness to a matter that you argue. Stop it. It brings the family law bar into disrepute.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

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