Have you ever heard the expression – “Blew the case wide open”?  This might seem more relevant to a murder trial where they find the smoking gun or perhaps you have watched a CSI episode and suddenly they find that one piece of evidence that magically solves the case.

Believe it or not that can happen in a matrimonial matter as well.  Sometimes the other side will bring a Motion for certain relief and in support of their Motion they file Affidavits alleging certain behaviour on your part.  Your lawyer then asks you questions concerning the allegations; trying to understand what happened.  You will be asked to respond to the allegations by writing out your side of the story. Often clients wonder whether they have written too much or not enough.

In a recent matter, the other party (Let’s call them “Jane”) was trying to deny our client (Let’s call them “Joe”) access to the children based on Joe’s recent behaviours.  Jane felt that Joe should only have supervised access as a result of these behaviours, which Jane admitted were uncharacteristic.  Jane sought such relief in an interim Motion.  

Joe was asked to provide a written response to the allegations made in Jane’s Affidavit so that a responding Affidavit could be prepared. In the response to us, Joe set out all the things he was doing to correct the situation and explanations for what had happened.  At the very bottom of the last page, Joe put in a side note to state that:

  • the medication he was taking was known to cause side effects including the symptoms that had been complained of;
  •  several months ago he had been to the doctor and said he wasn’t feeling better but was told to stay on the medication as it took a while to work.
  • The symptom had ceased since changing the medication.

Eureka! All of a sudden that missing piece of evidence leapt off the page and it became clear what the defense to Joe’s actions were.  An explanation had been provided for the uncharacteristic behaviour.

Joe felt that this information was just a “side note” but in fact it was the most important statement made in the written response provided to us.  As a result we were able to successfully defend Joe against the allegations made and regained unsupervised access to the children.

Remember although you may think the information is insignificant, you should always relay the information to your lawyer.  As long as you are being factual and not emotional, then you can never write too much.  You should let the lawyer you have hired to assist you determine whether or not that information is “insignificant” or whether it can in fact “blow the case wide open”.