It was 35 years ago today that the Chernobyl nuclear disaster occurred and since then “Chernobyl” has become a metaphor for catastrophic disaster. Similar consequences can also result after family battles involving divorce proceedings or inheritance. Some useful considerations for lawyers involved in acrimonious litigation are found in Alsawwah v. Afifi, 2020 ONSC 2883. The comments of Justice Kurz have been edited below for brevity:

“Having been required by the exigencies of this motion to closely and frequently review the materials filed in this motion, I feel constrained to offer a few words of caution to the parties, their counsel and to the profession as a whole.”

“Litigants feel that they can leave no pejorative stone of 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.”

“In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:

• Evidence regarding ….moral failings is rarely relevant to the issues before the court.
• Nor are we swayed by rhetoric against the other party that verges on agitprop.
• Exaggeration is the enemy of credibility.
• Affidavits that read as argument rather than a recitation of facts are not persuasive.
• Hearsay allegations ….are generally ignored, whether judges feel it necessary to explicitly say so or not.
• A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent.
• Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
• One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.”

Justice Kurz offers a great deal of useful advice which reaffirms that the use of “Chernobyl” excess in litigation should be avoided at all times.

Thanks for reading!

James Jacuta