Alsawwah v. Afifi: Protecting the Children’s Best Interests during COVID-19
In Alsawwah v. Afifi, 2020 ONSC 2883, the parties had 3 children during their 14-year relationship. They separated in October 2018 when the father was charged with assault against the mother. His bail conditions prevented him from returning to the matrimonial home or coming within 500 meters of the property. Since that time, the father has been residing in a one-bedroom apartment which he rented. The children initially resided with the mother but eventually moved out to live with the father as a result of an incident in February 2020 during which the mother physically assaulted her daughter and forcibly removed the children from the matrimonial home. As a result of this incident, the daughter who was assaulted exhibited suicidal behaviour and had to seek counselling.
Since February 2020, the father and the children have had to share a one-bedroom apartment, which is a stark contrast to the parties’ four-bedroom family home. The effects of living in such close quarters have been exacerbated by COVID-19. The father works from home and the children have almost no privacy in the apartment, which negatively impacts the daughter’s counselling sessions. The mother has not sought to have the children returned to her care and did not even seek access. The mother continues to reside at the matrimonial home on her own.
In light of the cramped accommodations for the children, the father brought a motion seeking exclusive possession of the matrimonial home on the basis that it would be in the children’s best interests to move back to the home. Furthermore, the father can no longer afford to maintain the matrimonial home in addition to the one-bedroom apartment rental. The mother vehemently objects to the father’s motion. She argues that the motion is not urgent and that the claim for exclusive possession has not been made out under the Family Law Act.
It is clear that the father’s motion is urgent. Following Thomas v. Wohleber, the Court found that the issues raised by the father are immediate, serious, material, and particularized. Specifically, the children have been severely impacted by the February 2020 incident and need stability during these stressful times. The Court noted that the children essentially voted with their feet by moving in with their father. There is no question that residing in the matrimonial home would better meet the children’s best interests.
However, under section 24(3) of the Family Law Act, the Court still had to consider the parties’ respective financial positions and whether the mother is able to secure alternate accommodations. The father has historically had a superior financial position, earning over $180,000 a year. The mother, on the other hand, earns approximately $1,000 per month as an Uber driver. In her court documents, she implies that this financial disparity was due to her role as a traditional homemaker during the marriage. As a result, the mother has greater difficulty securing alternate accommodations. On this issue, the Court found that if the father was granted exclusive possession of the matrimonial home, then he ought to make periodic payments to the mother in order to financially assist her during this transition.
Nevertheless, the children’s best interests are paramount and therefore, despite the inconveniences to the mother, the father was given exclusive possession of the matrimonial home and ordered to pay $2,500 per month to the mother for the months of May and June 2020, and subsequent payments of $1,250 per month going forward.
Some Comments on Rhetorical Excess in Family Litigation
The Court noted that the parties in this motion both adopted an incendiary rhetorical style, to varying degrees, in their court materials. While the Court understands that lawyers are there to fiercely advocate for their clients, using excessive rhetoric in court documents can be corrosive and highly damaging to family relationships. Specifically, the Court noted that that evidence regarding a former spouse’s moral failings are rarely relevant in a family law proceeding and that by exaggerating the situation, a party will most likely undermine their own credibility. Moreover, the Court warned against including hearsay allegations and unnecessary lawyer’s letters in a party’s affidavit.
While the moral high ground matters in family litigation, it is also important to keep the evidence tailored to relevant facts and not a mountain of allegations. This means that even if one side engages in inflammatory conduct, the other side need not respond in kind. Rather, proper restraint in drafting and advocacy will almost always be superior to rhetorical excess.
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