Revisionism: Rewriting a Separated Family's History

In every generation, there are those that attempt to rewrite history. In an attempt to re-craft the historical record, revisionists use techniques such as denial, exaggeration, understatement, and hyperbole. 

Effective revisionists mix known and irrefutable facts with distortions. By adding a measure of credibility to their work, their revisionist ideas are more readily accepted in the public mind. The purpose of revisionism is often to achieve a political aim, demonize an enemy, or create an illusion of loss.  

By redefining the public's understanding of past events, revisionists are able to garner sympathy and support for their cause, and/or shift anger and disapproval towards the identified person or group.  

Notable examples of revisionism include Holocaust Nazism, Soviet Communism and, Serbian war crimes. 

Revisionists often believe their claims.  In their minds, they are not lying but sharing with others what they believe to be true. Some of them appear credible and believable. 

Separation and divorce are no exception to historical revisionism

The breakdown of an intimate relationship often occurs over a lengthy period.  Rather than an isolated event, it is more a gradual deterioration of the marital partnership.  Along the way, there are actions and reactions.  

At any moment, one spouse may believe he or she is a victim who is simply responding to a provocation or outright attack, and the cycle continues and usually worsens.  Eventually, the relationship ends. The final event is often not the cause of the breakdown, but the point when past attempts to hold the relationship together end.   

After the couple is no longer together, each spouse departs with his and her own narrative of what occurred during the marriage. That is then shared with others. Family, friends, therapists, lawyers and judges (the audience) are then provided with the spouse's explanation of what occurred during the marriage (from his or her perspective). Most of the members of the audience do not have the benefit of hearing both sides.  

In family law practice, lawyers do not ever meet with both spouses.  Lawyers only hear one side.  Sometimes the narrative that is provided by a spouse is supported and bolstered by family and friends who accompany the spouse to lawyer/client meetings. In the higher conflict cases, these narratives often become cemented in court documents and affidavits, often with fine details to lend to their reliability.  

At times, these affidavits are matched by a very different narrative from the other spouse, often interlaced with details of the other spouse's past wrongdoings. The ultimate decision-maker of the competing narratives is the judge, who is usually perplexed by the conflicting affidavits.  

Although the couples’ narratives are typically irrelevant to a judicial determination in family law, it is unlikely that any reader (judges included) can entirely eliminate the impression made by these descriptions, however inconsistent. In the rarest of cases, the spouse is cross-examined on the affidavit and is challenged as to its truth, completeness and reliability.  

And that is why esteemed Justice Ramona Wildman denounced the use of affidavits in the case of Rosen v. Rosen, 2005 CanLII 480 when she stated that "there is a deliberate attempt to try to avoid the damage that flows from the nasty affidavit war that accompanies the filing of a motion." 

That has not ended the business of lawyers drafting, clients swearing, and judges reading affidavits, accusing the other spouse of offences - based on his or her perception of the relationship.  These affidavits are typically presented as an irrefutable historical record.  

Just as with historical revisionists, a spouse's narrative may consist of denial, misrepresentation and distortion. In high conflict cases, the spouse's aim may be to demonize the other spouse in an effort to garner sympathy and support for his or her case and establish anger and disapproval towards the other spouse.   

And there you have it, revisionism in family law.   

Did I mention that after spending 20 years drafting such affidavits, I recently launched my divorce mediation practice where both spouses meet with me...without affidavits.

Steven Benmor, B.Sc., LL.B., LL.M. (Family) of Benmor Family Law Group is certified as a specialist in family law.

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