In the recent case of Alsawwah v. Afifi [2020 ONSC 2883], the Ontario Superior Court of Justice dealt with a highly adversarial urgent motion –with “rhetorical fierceness” that the court compared to that of a “mixed martial arts cage match”– for exclusive possession of a matrimonial home during the COVID-19 pandemic.

The Father moved into a one-bedroom basement apartment immediately followed by the parties’ separation, while the Mother remained in the matrimonial home with their three children. After a serious physical conflict arose between the middle child and the Mother, which resulted in the child threatening suicide, all three children went to live in the Father’s sole de facto care at the end of February 2020.

The Father then brought an urgent motion for exclusive possession of the matrimonial home. The Father’s arguments came down to two main points: the children’s best interests were to return to live in their larger former home during the COVID-19 pandemic and his financial inability to maintain two homes.

The Mother responded to the Father’s motion and had a different story about what happened during the incident in February 2020, although she did not deny the child’s suicide attempt –which the court classified as “telling”. The Mother pleaded that the Father’s motion was not urgent, the child was coached by the Father to make false allegations against her and that the Father should not have exclusive possession of the matrimonial home. Instead, the Father and the children should have continued to all live together in the apartment. The Mother did not seek an order for the return of the children to her care –not even for any access with the children.

The first issue that the court considered was whether this motion satisfied the high threshold test of “urgency” during the COVID-19 pandemic. Justice Kurz found that the issues raised by the Father met the urgency test in Thomas v. Wohleber [2020 ONSC 1965], as the issues were immediate, serious (affected a spouse or child’s health, welfare or dire financial circumstances), definite, material and clearly particularized.

Justice Kurz considered the following in his decision:

1. there were now 4 people living in the Father’s apartment;
2. the Father’s accommodations had left 2 of the children sleeping on the floor;
3. a return to the matrimonial home would help provide the children with stability; and
4. COVID-19 had made this situation worse due to social distancing.

The second issue that the court considered was whether the Father should have had exclusive possession of the matrimonial home. Under s.19 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), both spouses have an equal right to the matrimonial home. However, under s.24 of the FLA, the court can grant one spouse exclusive possession of the matrimonial home. S.24(2) allows the court to make such an order on an interim basis.

Justice Kurz focused on the criteria listed at s.24(3) of the FLA to help make his determination. The first and paramount consideration was whether granted exclusive possession would be in the best interests of the children.

Justice Kurz concluded that giving the Father exclusive possession would be in their best interests as the children lived in a cramped space with little privacy. Two of the children had to sleep on the floor, and these circumstances were made even worse by COVID-19, which caused the cancellation of the children’s school and extracurricular activities. At the matrimonial home, each child would have had their own bedroom, possessions, and a backyard. Also, the Father, who worked from home, would not get in their way and the middle child would have the privacy to speak with her counselors.

Justice Kurz also found that the Father was not in a financial position to rent a more expensive and bigger home to accommodate them all. After all, since separation the Father had already been paying all of the expenses of both the matrimonial home and the apartment.

Justice Kurz then turned his attention to the impact that granting the Father exclusive possession would have on the Mother, since he was much more financially well-off than her. Throughout the marriage the Father worked full-time while the Mother was a stay-at-home wife. Notably, neither party sought an order for support at this urgent motion and thus the court did not have jurisdiction to order same. Instead, Justice Kurz awarded the Mother “periodic payments” under s.24(3)(c) of the FLA and held that the Mother could not simply leave the home without financial assistance. In order to provide the Mother with sufficient time to find alternative accommodation, Justice Kurz adjourned the motion to a later date.

At the end of the court’s decision, Justice Kurz made comments which addressed the nature of many family law proceedings, in light of the Mother’s reliance on the consistent use of hyperbolic language and pejorative adjectives to define and describe everything that the Father has done:

“Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone or 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.

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.”

Of special note, Justice Kurz continued by highlighting a number of different factors for lawyers to consider “in hopes of lowering the rhetorical temperature” at future court proceedings:

1. a former spouse’s “moral failings” is rarely relevant before the court;
2. the court is not swayed by inflammatory rhetoric;
3. the court’s decisions are not guided by concerns of marital fidelity;
4. exaggeration lowers credibility;
5. affidavits that read more as an argument than as facts are not persuasive;
6. hearsay allegations in reach of Rule 14(18) and (19) of the Family Law Rules, O Reg 114/99 are generally ignored by the court;
7. a lawyer’s letter, unless it contains an admission, is not evidence of anything except the fact that it was sent;
8. facts are what win cases;
9. relevance matters;
10. a key to success in family law is “the race to the moral high ground”; and
11. avoid “me-too”-isms. If one side is failing to act appropriately, it does not give the other side permission to do the same.

The Alsawwah case provides a clear sign from the Ontario Court that rules of evidence are important and invective in materials is rarely appreciated.