In the recent judgment issued on December 17th, 2024, Justice Sharma of the Ontario Superior Court of Justice provides the legal profession with significant guidance regarding the practice standards for family law motions. As a response to the “frequency with which improper motion materials are filed in family proceedings”, Justice Sharma makes a concerted effort to “remind counsel […] and the profession more generally of what is appropriate in support of a family motion” (para 10). The decision provides Justice Sharma’s guidance on motion materials, in addition to a general instruction for counsel to comply with the Consolidated Provincial Practice Direction for Family Proceedings.
Justice Sharma underscores the critical importance of well-prepared motion materials, specifically focusing on the content of affidavits. He emphasizes that affidavits should strictly contain relevant and material facts, steering clear of any irrelevant or scandalous information.
Proper Elements of an Affidavit:
- An affidavit should contain only relevant facts that are material to the issues raised in the motion. The inclusion of facts that are irrelevant or not material to the issues to be decided constitutes poor advocacy. It distracts the judge from the issues to be decided, consumes limited affidavit space, and raises costs unnecessarily for both parties.
- An affidavit should contain detailed facts in support of an allegation or position taken on the motion. For example, it is not sufficient to state the opposing party engaged in family violence, without providing detailed facts of the alleged family violence.
- An affidavit should not plead the law, contain argument, cite legal authorities or authoritative texts. These matters should be in a factum.
- It is poor advocacy to repeat the parties’ full names each time a party is referenced in an affidavit. If an Affidavit is sworn by a party, they should refer to themselves in the first person (i.e., “I” or “me”), rather than the third person (i.e., “The Respondent, Noshina Ashmeade” or “she”). Use of the third person suggests that the words in the affidavit are not facts sworn by an affiant, but legal argument of the lawyer who prepared it.
- An affidavit must contain admissible evidence. In certain circumstances, limited hearsay evidence may be found to be admissible and given weight by the presiding judge where it is necessary to receive such evidence and where such evidence has indicia of reliability, or where another exception to the rule against hearsay evidence applies. However, a party’s affidavit should not rely significantly on hearsay evidence as the basis to support or refute allegations.
Expert Opinions:
- In family law cases, opinions from professionals like doctors, teachers, CAS workers or therapists should not be included in a party’s affidavit or attached as exhibits. Instead, these experts should prepare their own affidavits. Expert opinion evidence must meet the requirements under Rule 20.1 of the Family Law Rules and is typically used at trial, not on a motion. If opinion evidence is needed for a motion, leave should be sought for the expert’s affidavit. Business records that document acts, transactions, occurrences or events (but not opinions) can be attached as exhibits.
Exhibits:
- Attach only essential, relevant and material exhibits providing clear explanations of their significance.
- It is a best practice to hyperlink exhibits within an affidavit to permit a judge to review and consider exhibits efficiently. Hyperlinks allow judges to quickly look at the exhibit while reading the text of the affidavit, and then return to where they left off in the affidavit
Guidance on Factums:
Justice Sharma notes that “Factums should be laser-focussed. In numbered paragraphs and in an organized manner with subheadings, they should:
- Identify the relief that is sought as set out in the Notice of Motion;
- Provide a brief factual background of the case that is relevant to the motion;
- Identify the issues to be decided on the motion;
- Identify the legal test to be applied, including any factors, and with reference to the relevant statutory authority and caselaw;
- Pinpoint the paragraphs within the affidavit evidence that establish the facts relevant to the legal test to be applied. Parties should not simply cut and paste an affidavit into a factum. The facts should be synthesized and applied to the legal test; and
- Conclude by explaining how the legal test has been met and what orders should be granted.”
Conclusion
This decision serves as a reminder for legal practitioners to meticulously prepare their affidavits and factums, ensuring they are relevant and material to the case at hand. Properly prepared affidavits not only facilitate a smoother judicial process but also help in achieving fair and efficient outcomes in family law disputes.
By following these guidelines, you will ensure your motion materials are effective, compliant and more likely to be well-received by the court.
This blog post was written by Alison Boyce, Practice Lead of the Family Law team, and Colton Allen, Articling Student. Alison can be reached at 613-566-2081 or at alison.boyce@mannlawyers.com.