Hearsay Evidence in Family Law Affidavits

Written on behalf of Shariff & Associates

Disputes over parenting issues can be emotional and involve a high level of conflict, particularly where one parent makes a unilateral decision to withhold the child from the other parent. These issues often require quick action, including the urgent preparation of affidavit evidence for an emergency motion. However, Ontario’s courts have cautioned parents against relying on inadmissible hearsay evidence, regardless of their haste to resolve a parental conflict.

What is Hearsay Evidence?

Hearsay evidence is information (usually a statement) provided by someone who is not a party to a legal proceeding. Generally speaking, hearsay evidence is inadmissible because it is not as reliable as direct evidence from the parties provided under oath and cannot be tested through cross-examination.

There are some situations in which hearsay evidence may be admissible. These include:

• Evidence that can be proven to be reliable. For example, a police videotape of a witness’s statement, where the witness has been properly advised of their rights and the consequences of lying;
• The use of the hearsay statement not as proof of its truth, but to establish a party’s state of mind or provide context to other evidence;
• Situations that necessitate the use of hearsay evidence. These are very limited but can include cases where a child’s evidence is required and cannot be elicited in court (for example, where it may be detrimental to the child’s best interests to testify). These situations are often addressed using expert evidence or a Voice of the Child Report prepared by the Office of the Children’s Lawyer.

Mother Withheld Child From Father on Allegations of Substance Abuse

The issue of inadmissible hearsay evidence arose in the 2021 decision of the Ontario Superior Court of Justice in Chrisjohn v. Hillier. The father brought an emergency motion to have the parties’ 3-year-old child returned to him as he was the primary caregiver. The mother was only entitled to specified parenting time under a previous court order. She alleged that during a recent exchange of the child, the father appeared to be intoxicated. The mother accused the father of having a substance abuse problem and stated he posed a risk to the child.

In his affidavit evidence, the father denied he had been drinking on the day in question. The paternal grandmother supported the father’s position in her own affidavit.

Evidence Within Mother’s Affidavit Substantially Based on Hearsay

In her responding affidavit, the mother stated that after observing the father’s alleged intoxicated state, she contacted the police. She explained that the police officers confirmed the father was intoxicated after attending his home that evening. No police records were provided, nor did the mother identify the police officers by name.

The mother also attached copies of electronic messages from the father’s girlfriend and former partner to her affidavit. She argued that the messages confirmed the father had been drinking on the day in question and had a history of alcohol and substance abuse.

Hearsay Evidence of Police Statements Inadmissible Under Family Law Rules

The court expressed concern over the growing trend of hearsay evidence in family law affidavits. With respect to the mother’s evidence about what she was told by police, the court found it to be inadmissible as it did not comply with Rule 14(19)(a) of Ontario’s Family Law Rules. That rule provides that the source of the hearsay evidence must be identified by name in the affidavit, and the person swearing the affidavit must state that they believe the hearsay evidence to be true. As a result, the mother should have limited her affidavit evidence to her own observations and beliefs.

Parties Must Avoid Attaching Unsworn Communications from Third Parties as Exhibits

The court also cautioned against the practice of appending electronic communications to affidavits in order to “inject inadmissible hearsay into an evidentiary record”. Justice Mitrow cited the 1990 decision of the Ontario Provincial Court (Family Division) in LiSanti v. LiSanti. In LiSanti, the mother attached a lengthy narrative to her affidavit that relied heavily on statements made by unnamed sources. However, Justice Mitrow found that the court’s comments in LiSanti are equally applicable to the use of hearsay-based electronic communications as exhibited in modern family law disputes:

“There has been a disturbing tendency in recent months to attempt to incorporate, in motion material, renditions of statements allegedly made by parties or other sources without their inclusion in an affidavit. The rules, however, require evidence on a motion to be by way of affidavit. The basis of that requirement is obvious. Without the possibility of testing an allegation through cross-examination, there is an incentive to swell the evidence freely with unsupported statements by persons not clearly identified and, therefore, safe from inquisition…”

The inability of parties to test hearsay statements that are appended to an affidavit makes them inherently unreliable as evidence and therefore inadmissible. As a result, Justice Mitrow cautioned that parties to a family law dispute must limit their motion material to admissible evidence. This includes avoiding the “temptation” to attach text messages or email threads from third parties who have not sworn to their truth as exhibits.

Contact Shariff & Associates in Stouffville for Reliable Advice in Parenting Disputes

The dedicated family lawyers at Shariff & Associates provide dependable advice and effective solutions for clients involved in parenting disputes, including issues of decision-making responsibility and parenting time. We assert and protect our client’s legal rights while exploring every opportunity to reduce conflict and cost.
Shariff & Associates is the largest family law firm in Stouffville and assists clients in Markham and the Greater Toronto Area. We also serve communities that have been historically under-serviced, including Ajax, Brooklin, Aurora, Newmarket, Uxbridge, Whitby, Oshawa, Mount Albert, Ballantrae, and Zephyr. To schedule a confidential consultation with a compassionate family lawyer, call us at 905-591-4545 or reach out online.