He Said/She Said: Evidentiary Problems in Family Law
Clarissa Szakacs, a 46 year old mother of a 6 year old child, met her child’s father online and became pregnant during their first meeting in person. She and the child’s father, Donovan Clarke, never cohabited. Since her child’s birth, Ms. Szakacs has worked vehemently to keep Mr. Clarke from his daughter.
In reasons reported as Szakacs v. Clarke, 2014 ONSC 7487, Justice Quinn of the Ontario Superior Court of Justice speaks about the difficulties in family cases where parties are self-represented. In this specific case, the difficulties Justice Quinn describes in dealing with Ms. Szakacs were much more apparent than difficulties in dealing with Mr. Clarke.
Ms. Szakacs stacked her case against Mr. Clarke with unfounded allegations, was found to have intentionally interfered with court orders for Mr. Clarke’s access, and was found not to be a fair-minded witness never admitting anything negative about herself or positive about Mr. Clarke.
On the other hand, the main complaint Justice Quinn had for Mr. Clarke was his failure to properly disclose documentation of his income and his deductions. Justice Quinn commented that Mr. Clarke was generally respectful of Ms. Szakacs and the court process.all
The decision brings to light some important points:
(1) the importance of carefully crafting non-exaggerated and truthful allegations;
(2) the importance of witness testimony and demeanor; and
(3) the necessity of a sober, second thought in situations where parties’ emotions are running high such as where there are children involved.
In this case may of the allegations made by Ms. Szakacs were found to be completely unfounded. When she was questioned as to the validity of some of her allegations, she refused or failed to answer Mr. Clarke or the Judge’s questions. The most important goal for the finder of fact in Canadian Courts is to get to the truth of what happened. To that end, judges listen to and watch witnesses carefully. They will make a determination from both the content of the testimony and the demeanor of the witness to determine whether the testimony is truthful. In this case, Justice Quinn had this to say about Ms. Szakacs:
 She consistently displayed an inability to provide details or examples of complaints and I find that her phony nervousness was a ploy to obscure the truth. The court was left with general allegations that seemed to mirror a brochure that she might have read titled, Key Words and Phrases to Use if You Want to Everyone Think That the father of Your Child is Unfit.
¦ During her testimony, in response to my questions and those put to her by Mr. Clarke, she was argumentative, flippant, acerbic and sarcastic. She queried the relevance of some questions that put her in an unfavorable light She even challenged my authority to hear the case because I had conducted a case conference in 2010. She smirked all the way through the trial
 One of the most notable features of the testimony from Ms. Szakacs was her refusal to admit anything negative about herself or to concede anything positive about Mr. Clarke. In my experience, this absence of fair-mindedness is one of the hallmarks of an untruthful witness. I will give six examples (but there are more):
(a) At the conclusion of her testimony in-chief, I asked Ms. Szakacs whether she would be happy if the child turned out to be just like her. She answered without hesitation, “Yes”. I then reviewed evidence of her life between the ages of 32 and 40 and inquired whether it showed good judgment. Her rambling answer ended with, I cannot judge myself.
(b) In her tote box of files were some handwritten notes that she made of something the child said on one occasion. Ms. Szakacs had her 13-year-old sign the notes as a witness. When I expressed surprise that she would involve her son in this litigation, she would not concede that it was wrong to have done so.
(c) In explaining why she was not employed, Ms. Szakacks referred to the time-consuming and stressful nature of this almost-five-year application. When I reminded her that Mr. Clarke had described his difficulty in “holding it together” and selling real estate with those same burdens, she refused to acknowledge that they were acceptable excuses for his drop in income for the years 2009-2013.
(d) When questioned about her life between the ages of 32 and 40, she testified that she had changed and is now a better person. I said to her: So, people can change. For example, over time some people become better fathers? She refused to concede that this applied to Mr. Clarke.
(e) Mr. Clarke and his parents were late arriving from Toronto for the christening of the child. Mr. Szakacs holds a grudge about that to this day (and is oblivious to how badly Mr. Clarke and his parents may feel).
(f) Early in their relationship, Mr. Clarke borrowed some money from Ms. Szakacs (for which she had him sign formal promissory notes). She complained about this from the date that her Application was issued to her last words in the witness box, even though the money was fully repaid, with interest, within one year. Why was she upset? Because the money to repay her had come from Mr. Clarke’s mother.
It is clear from Justice Quinn’s comments above that Ms. Szakacs was not a believable witness. A common theme arising from Ms. Szakacs’ evidence is her tendency to want to have her cake and eat it too. She also seems to fail to realize that what’s good for the goose is good for the gander. A witness who takes an unreasonable position and then provides evidence that is internally contradictory will not likely be believed. Also, Ms. Szakacs demeanor, including her complete disregard for the court process and sarcastic tone, helped Justice Quinn to determine she was not a trustworthy witness.
The proper preparation of witnesses is crucial to any case. A properly prepared witness should not sound rehearsed, but should sound confident in that they are telling the whole truth. Things that generally hurt a witness credibility include failing to reasonably admit facts that hurt their case, exaggeration and sarcasm.
Once a witness has been found to be not credible, it is hard for that witness to regain the trust of the court. Therefore, after making sarcastic, exaggerated comments and failing to properly consider limits to their own testimony, a witness will likely not be believed by the court even if they have important, truthful evidence to give.
In family law cases, parties’ emotions often run high. When in such an emotional state, it is difficult for anyone to be reasonable and objective. As is often-said a self-represented litigant has a fool for a client. This is because a lawyer often acts as a sober, second thought. It is hard to see a dispute from a reasonable standpoint when you are very emotionally involved.
Not only unrepresented family litigants suffer from this same inability to act reasonably. Often parties take unreasonable positions and make unfounded allegations even when they are represented by counsel. An interesting, more recent example of a case in which the witnesses failed to be honest with the court and were found to be lying on multiple occasions in the family law context is the recent decision of Bilan v. Bilan, 2015 BCSC 21.