The thing that hangs up a lot of self rep litigants is the lack of evidence quality, or inadmissible hearsay.
Best Evidence versus All Evidence
A common mistake, which is probably the reason why page limits exist, is to try and get in all the evidence possible to prove a particular point. Don't do that. Pick the best one or two pieces of evidence and leave it at that.
What is Hearsay?
Hearsay is any out of court statement. For example, if you say your child's teacher told you on April 6th that the child showed up at school with no shoes, that is a statement the teacher made "outside" of court and unsworn, and would be considered hearsay and inadmissible.
If the teacher wrote you an email saying "Every other week, the child comes to school without their homework being done", would also be hearsay as it didn't come in the form of an sworn statement (affidavit), and therefor inadmissible. But report cards that state homework is not being handed in would be admissible, which you'll learn why in the exceptions below.
What are the exceptions to Hearsay?
There are a lot of ins and outs to hearsay, and a lot of exceptions. Covering them all here would not be practical so I'll just just of the most common ones. it boils down to its reliability as evidence.
Any communications from the other party to you, are an exception to hearsay.
Generally email is admissible as it's got a date/time stamp, where texts are not unless you can validate the date and time they were sent. Texting apps like OurFamilyWizard and AppClose do log the date and time so they are fine, otherwise as a general rule, try and limit important stuff to email.
Records kept in the normal course of business are an exception to hearsay. This would include banking records, report cards, medical records (but not a letter from the doctor). The daily notes taken by someone at an access centre for example would also be admissible. A record of employment, loan documentation, etc. would also be admissible as it wasn't crafted for the intent to further a legal argument being made.
Spontaneous utterance is admitted. So when someone says something "in the heat of the moment" the presumption is it wasn't a crafted message to further the arguments of any particular side of litigation.
That the hearsay statement does not go to the fact of the matter. This can be a bit confusing. For example, you might be relying on a hearsay statement to establish why you came to the belief that you did, but that the hearsay statement is not being used to prove the thing that you came to believe. It's a nuance but its there. You could be explaining the timeline on why your brought the motion now when you did "I was told the child was disenrolled from school because the school secretary told me on April 5th, which motivated me to bring a motion 2 days later", as opposed to using that receptionist's hearsay statement to prove that the child was disenrolled (you would use school records to prove that).
The Court could also be asked to preform a general analysis on a hearsay statement to determine it's reliability. But don't bank on this. Courts routinely decline to consider hearsay evidence.
Hearsay for an Interim Motion vs trial?
There is another exception to hearsay, that is reliant on the process for which it is being asked to be considered. Hearsay won't be accepted at trial, or in a Motion to Change. But it is allowed to be considered when put in for an interim motion, still at the discretion of the Court.
In Lucrenziano v. Lucreziano, Nakonocheny J, noted as follows:
[49] Rule 14(19) allows for hearsay only in restricted conditions. The case law identifies potential issues with the admissibility of the doctor's letters attached to a party's affidavit. In some cases, courts have rejected unsworn doctor's letters as inadmissible because the letters contained no evidence as to the doctor's qualifications and there was no opportunity to cross-examine the doctor. While a doctor's letter or report will not be excluded solely because it is not in the form of an Affidavit, the Court must be satisfied of the truth of the facts contained in the letter or report: Ceho v. Ceho 2015 ONSC 5285, Kozak v. Kozak, 2018 ONSC 690.
Ontario Family Law Rule 14(19) says:
RULE 14: MOTIONS FOR TEMPORARY ORDERS
Affidavit based on other information
(19) The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. O. Reg. 114/99, r. 14 (19).
So how could you use this in practice? Its not that hard really....
[6] On February 02, 2023, the Mother of the Respondent told me, and I believe it to be true, that the Respondent had moved out of her mother's house and had relocated to a new residence in Niagara Falls.
or
[8] On March 08, 2023 I called the Respondent's work place. The receptionist told me that the respondent is no longer a salesperson there, but the sales manager there. I believe this to be true because I then asked to speak to the general manager, who confirmed that the Respondent was indeed the sales manager there, but declined to give me any further details other than that position was accepted in January of 2023.
But keep in mind, while it might seem easier to get some evidence in on an interim basis, there's also the higher barrier of success that you have to contend with, a judge is not likely to make an order on an interim basis that they feel will be overturned on trial, especially with respect to anything involving the children (they do not like to bounce schedules around for children).
How do you show Evidence?
When you are providing sworn testimony, that generally comes in the form of an affidavit. Your goal is to back up every claim you make with written evidence and/or witness testimony. The written evidence could take the form of bank records, report cards, communications between you and the other party for example.
Every paragraph in an affidavit will have a paragraph number. And when you have an affidavit, and in there you make the claim that the opposing party says "x" to you on a particular date, it should appear in your affidavit like this
7. On March 3rd, 2023, the Applicant told me in an email that she would not consent to the children going on vacation with me unless I agreed to pay her spousal support. Attached hereto marked as Exhibit "A".
After the affidavit you would have a printout of the email with Exhibit "A" in big bold letters at the top. In addition there will be a box for the person who "swears in" the exhibit with their signature. The person who "swears in" the affidavit may be your lawyer, or a court clerk, or any lawyer or commissioner of oaths. If your exhibit is multiple pages, just the first page of the exhibit.
By comparison, when you are attaching documentation to briefs, you attach them as "Schedules".
Additional Considerations for Hearsay of a Child
Its rare that a child is allowed to testify. And to get around that, a Voice Of The Child Report (VOC or VCR) is ordered to ascertain what the child would be expected to say if they testified. Generally this is conducted by a family lawyer and social worker. The pair is used to both act as an advocate and ascertain the independence of the views and preferences expressed by the child
But there is a test that the VOC/VCR is subjected to; its not automatic although the presumption generally speaking without contrary evidence is shown in Moses v. Weekes, 2023 ONSC 6140 (CanLII). The Judge here conveniently laid out for you in paragraph 93. If you want to attack the VOC/VCR, use this as a roadmap on where to focus your arguments:
[93] Oral argument in relation to each statement was scant. Little to no authority was provided. The following principles will be considered:
a) In general, hearsay is not taken under oath, the declarant’s demeanor when making the statement is not observed, and hearsay is not tested in cross-examination: R. v. Bradshaw, 2017 SCC 35 at para. 20.
b) Hearsay may be inaccurately recorded, and the perception, memory, narration or sincerity of the declarant is not easily investigated: R. v. Khelawon, 2006 SCC 57, at para. 2.
c) The presumptive inadmissibility of hearsay may be overcome in cases where its proposed admission meets the requirements of necessity and threshold reliability and satisfies the principled approach to hearsay: Bradshaw at paras 22-23; Khelawon at paras. 42 and 47; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531, at paras. 29-30; Ward v. Swan, 2009 CanLII 22551 (ONSC), at paras. 2-3; Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, at paras. 9-17.
d) The requirement for threshold reliability requires a determination of whether the child’s hearsay statement is sufficiently reliable to be admitted into evidence: Bradshaw at para. 24; Khelawon at para. 49; G.S. at para. 12.
e) Threshold reliability requires a consideration of all relevant factors surrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child’s personality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y. at para. 134; Khelawon at para. 51; Khan at para. 30.
f) The court must be satisfied that the statement was accurately and objectively reported, and that the child was not manipulated, coerced or pressured into making the statement: Ward at para. 15; Children’s Aid Society of Metropolitan Toronto v. M.(R.), [1992] OJ No 1097(CJ), at paras. 15-16.
g) The court should also consider whether the witness that is giving evidence to provide the out-of-court statement has a vested interest in the outcome of the case; Ward at para. 17.
h) A hearsay statement is admissible if substantive reliability is established, namely that the statement is inherently trustworthy given the conditions when it was made and any corroborating evidence: Bradshaw at para. 30; Khelawon at paras. 4, 62 and 94-100; G.S. at para. 16.
Two Types of Witnesses
Participatory Witnesses
This is a person who is testifying with first hand knowledge, and not asking the court to accept their opinion. "I saw this happen on February the 16th", as opposed to "I think the child should be in Mom's care because of these reasons"
Expert Witnesses
This is a person which is offering an expert opinion. Their credentials must be submitted, and the court must accept them as an expert witness. Expert witnesses could be certified business evaluators, or could be a medical doctor for example giving an opinion on a medical treatment plan.
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