Lawyers are, by nature, wordsmiths. Trained to persuade, analyze and dissect complex legal issues, they often take pride in their writing skills, crafting meticulous court documents that leave no stone unturned. Many excel at producing compelling affidavits, making them some of the most effective writers in any profession. However, this strength can also be a weakness. The tendency to over-explain, make every argument, and include exhaustive examples can frustrate judges who prize clarity and conciseness over verbosity. Affidavit material that meanders through unnecessary details or drowns key arguments in excessive legalese risks losing the judge’s attention – and patience. In the courtroom and on the page, less is often more, and the best legal writers understand that brevity, when paired with precision, is the ultimate persuasive tool.
Ontario judges continue to demand that lawyers prepare concise, brief and focussed court documents. This was borne out in the recent case of Dupont-Goode v. Ashmeade, 2024 ONSC 7092, where Justice Sharma provided a detailed instruction manual to every lawyer and law clerk on how to prepare motion materials in a family proceeding:
“9. The Respondent’s affidavit and factum also does not comply with the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice (“Practice Direction”), which requires that all affidavits and factums be double-spaced. They were all single spaced.
10. Given the frequency with which improper motion materials are filed in family proceedings, it is worth reminding counsel in this case and the profession more generally of what is appropriate in support of a family motion.
a. A Notice of Motion should succinctly set out the relief sought and may cite the statutory basis for the relief. However, it is not appropriate to recopy the text of rules or statutory provisions or cite and re-copy portions of caselaw within a Notice of Motion.
b. Evidence on a motion may be given by way of affidavit or other admissible evidence in writing, a transcript of questions and answers from questioning under rule 20, or with the court’s permission, oral evidence: R. 14(17) Family Law Rules.
c. 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. The insertion of irrelevant, scandalous and immaterial facts suggests to a judge that a litigant is more concerned about maligning the opposing party than meeting the prescribed legal test for the relief sought. It creates an irrelevant distraction.
d. 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.
e. An affidavit should not plead the law, contain argument, or cite legal authorities or authoritative texts. These matters should be in a factum.
f. 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. Affidavits from individuals with firsthand knowledge of the information should be filed, and if necessary, leave should be sought to file additional affidavits than are permitted under the Court’s Practice Direction.
g. In family cases, opinions of doctors, teachers, Children’s Aid Society (“CAS”) workers, or therapists are often relevant to the outcome of a case. Their opinions should not be in the text of a party’s affidavit, nor should reports with opinions from such professionals be attached as exhibits to an affidavit. It is also not proper to include within an affidavit text of a published report or other external sources from purported experts where their opinions are expressed.
Instead, the purported expert who is expressing an opinion should prepare their own affidavits. If expert opinion evidence is to be relied upon, it must be provided by an expert and the requirements under rule 20.1 of the Family Law Rules must be met. It is not common to have expert opinion evidence on a motion; expert opinion evidence is most often relied upon at trial where their opinion can be tested under cross-examination. If opinion evidence is to be admitted on a motion, leave should be sought for the admission of an affidavit of an expert.
However, where an exhibit is a business record that merely records an act, transaction, occurrence or event (and not an opinion), it may be attached to an affidavit as an exhibit: Evidence Act, RSO 1990, c. E.23, s. 35. Examples include a child’s attendance record maintained by a school, work or employment records, and records maintained by a CAS that records facts or observations of a CAS worker. See Catholic Children’s Aid Society of Toronto v. L. (J.), 2003 Canlii 57514, 2003 39 RFL (5th) 54 (ON CJ); Dworakowski v. Dworakowski, 2022 ONCSC 7209 at para. 52.
h. Only necessary, relevant and material exhibits should be attached to an affidavit. The exhibit must be legible. The text of the affidavit that references the exhibit should explain specifically what the exhibit is intended to demonstrate.
i. Counsel have a duty not to mislead the Court. When attaching extracts of text or email messages as exhibits, counsel should carefully consider if several pages of text/email messages, rather than a single page, should be included as an exhibit to ensure the context in which the message was sent and received is properly understood by the Court. A single page of text/email messages, with only one statement being relied upon by a litigant, may be insufficient to reach a factual conclusion or inference if the context in which the message was sent and received is not readily understood, or if only a single page of the text/email message is entered. Counsel may also consider, within the text of the affidavit, explaining the context in which the message was sent or received. If not readily apparent, the text message should make clear who is saying what.
j. 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.
k. Font, spacing and page limits prescribed in the Practice Direction must be followed.
l. It is improper to attach as an exhibit to an affidavit an affidavit of a different person to overcome the restriction in the Practice Direction that only one primary affidavit may be filed for a motion or cross-motion.
m. 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.
n. An affidavit should be reviewed by a party’s lawyer for proper spelling and grammar prior to the party swearing an affidavit. While minor errors will rarely impact the outcome of a motion, the improper use of grammar can raise questions about what the affiant intended by the words used.
o. It is improper to mention the substantive contents of an Offer to Settle when the substance of the Offer is the subject of the motion. Nor is it proper to refer to discussions at a case conference, settlement conference or trial management conference, including opinions expressed by a previous judge involved in the case.
p. Factums should be laser-focussed. In numbered paragraphs and in an organized manner with subheadings, they should:
i. Identify the relief that is sought as set out in the Notice of Motion;
ii. Provide a brief factual background of the case that is relevant to the motion;
iii. Identify the issues to be decided on the motion;
iv. Identify the legal test to be applied, including any factors, and with reference to the relevant statutory authority and caselaw;
v. 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
vi. Conclude by explaining how the legal test has been met and what orders should be granted.
11. All of the above problems were present in the Respondent’s motion material, including her affidavits and her factum (although she did hyperlink exhibits). Some were present in the Applicant’s affidavit. I have only considered evidence that was properly before me.”
The Ontario Superior Court of Justice has provided clear directives in its Consolidated Provincial Practice Direction for Family Proceedings, which imposes page limits and other restrictions to streamline motion materials and enhance efficiency. Understanding and adhering to the prescribed affidavit length and filing limits for motions in Ontario family law proceedings is crucial for effective practice and compliance. Below is a detailed summary of these rules and their implications for divorce lawyers and law clerks.
Page Limits for Affidavits
For short and regular motions, the Practice Direction mandates strict page limits for affidavits:
Primary Affidavit:
Each party is allowed one primary affidavit in support of their motion or cross-motion.
The narrative portion of this affidavit cannot exceed 12 pages.
If relying on an affidavit previously filed with the court, its length is included in the 12-page limit.
Third Party and Reply Affidavits:
These affidavits, when required, are limited to 5 pages each.
Financial Affidavits:
Affidavits related to financial statements, as outlined in Rule 13(12)(b), are not included in the 12-page limit.
Exhibits to Affidavits
Exhibits must be concise and strictly relevant to the issues at hand:
Exhibits are generally limited to 10 pages of necessary and relevant evidence.
Voluminous materials, such as extensive text messages, emails, or social media postings, should not be included. Only pertinent excerpts should be attached.
Permissible Attachments Beyond Page Limits
Certain documents are not included in the affidavit page restrictions, provided they are relevant and necessary. These include:
-Parenting assessments, Office of the Children’s Lawyer reports, and Voice of the Child reports.
-Documents establishing a child’s educational needs, such as report cards and Individual Education Plans.
-Lists of outstanding disclosure.
-Valuations of income, business interests, pensions, or real estate when property values are in dispute.
-Proof of income, including pay stubs, benefit confirmations, and business activity statements from tax returns.
-Relevant domestic contracts, such as separation agreements, marriage contracts, or cohabitation agreements.
Additional Required Materials
Parties are also expected to file the following materials, which do not count towards the affidavit page limits:
-Relevant prior orders or endorsements.
-Updated financial documents, including Financial Statements and Net Family Property Statements.
-Expert reports for litigation purposes.
-Support calculations.
-Recognizance terms, police reports, or children’s aid society reports (note: these reports cannot be uploaded to Case Center).
Exceptions to the Page Restrictions
The Practice Direction does not apply the affidavit page restrictions to:
-Long motions for summary judgment.
-Hearings addressing the wrongful removal or retention of a child.
For these matters, additional regional practice directions or notices to the profession may specify filing requirements.
Seeking Leave to Exceed Page Limits
In exceptional circumstances, leave may be sought to file materials that exceed the prescribed limits. Such leave should be requested during a case conference. Court documents that exceed the limits without prior approval will not be accepted, reviewed or uploaded to Case Center and may result in an adjournment.
Draft Orders
To expedite the court’s ability to finalize orders, litigants must provide a draft order that specifies the relief sought with reference to the appropriate legislative authority.
Practical Tips for Compliance
Plan Affidavit Content: Strategically organize affidavits to ensure they stay within the prescribed narrative and exhibit limits.
Focus on Relevance: Attach only excerpts of evidence directly tied to the issues in dispute.
Consult Early: If additional materials are necessary, discuss the need for leave during a case conference.
Leverage Templates: Use the sample clauses and draft order templates to meet court expectations efficiently.
By following these guidelines, Ontario family law lawyers and law clerks can ensure compliance with the court’s directives while presenting clear, concise, and effective motion materials.
CASE LINK: https://www.canlii.org/en/on/onsc/doc/2024/2024onsc7092/2024onsc7092.html
LINK to the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice Amended February 1, 2024 is located at: https://www.ontariocourts.ca/scj/practice/consolidated-provincial-practice-direction-for-family-proceedings-at-the-superior-court-of-justice/
This article was published in Law360 at: https://www.law360.ca/ca/family/articles/2287953/judges-demand-brevity-steve-benmor
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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