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  • Writer's pictureJared Davies, Lawyer

Examining the admissibility of certain evidence on a motion pursuant to Hunt v. Hunt, 2023 ONSC 5411

Introduction


Hunt v. Hunt is a 2023 decision by the Ontario Superior Court of Justice (ONSC). One of the peripheral issues concerns the admissibility of evidence for a motion.


Striking Some of the Father's Evidence


The mother raised objections against certain pieces of evidence presented by the father, on the motion, prompting her to request their striking from the record. Specifically, the mother seeks the exclusion of exhibits "M," "N," "S," "T," "Q," "P," and "O" from the father's affidavit, which include:


Exhibit "M": Excerpts of communications between the parents on the Family Wizard platform.


Exhibit "N": Letters from the father's lawyer to the mother's lawyer, proposing dates and times for supervised parenting time.


Exhibit "O": Email correspondence between the paternal grandmother and the mother.


Exhibit "P": Email correspondence between NP and the father regarding R’s status on the waitlist for speech therapy.


Exhibit "Q": Correspondence between the father and H’s teacher, JM.


Exhibit "R": Email correspondence from JM to the father.


Exhibit "S": Email correspondence between LC, a speech language pathologist, and the father.


Exhibit "T": Email correspondence between the mother and the father.


The mother's objections stem from her belief that these exhibits contain hearsay statements and privileged information related to offers to settle:


[14] The mother takes the position that these contain hearsay statements, as well as privileged information in the context of offers to settle, and she relies on LiSanti v. LiSanti, 1990 CanLII 4229 (ON CJ), [1990] OJ No 3092 in support of her argument.


The court responds:


Respectfully, the entire family law court system in Ontario has evolved by leaps and bounds, to the point of almost being unrecognizable, over the last three decades, and this decision is irrelevant for the purposes of this issue. This evolution, moreover, has resulted in the implementation of the Family Law Rules, including Rule 14(18).


The court's decision in Hunt v. Hunt delves into the admissibility of this evidence, shedding light on the evolving landscape of family law proceedings.


Legal Analysis


Rule 14(18): The Role of Affidavits and Personal Knowledge


The admissibility of evidence in family law cases is governed by specific rules and principles. Rule 14(18) of the Family Law Rules in Ontario stipulates that affidavits used in motions should ideally contain information based on the personal knowledge of the person signing the affidavit. This rule aims to ensure that evidence presented is directly related to the case and not hearsay.


However, Rule 14(18) also allows for some flexibility in admitting evidence, including hearsay, provided certain conditions are met. These conditions include disclosing the source of the information by name, the deponent expressing a belief in the information's truth, and the information not likely being disputed.


The court ruled the following:


Regarding Exhibit "N," which comprises letters proposing dates and times for supervised parenting time, the court did not consider them privileged. This is because none of the letters were marked "without prejudice," and they were sent on behalf of the father by his legal representative (however it should be noted some case law indicated “without prejudice” is not necessary to rule the documents privileged). The court found:


[17] …the source of the document is clearly identified, and the letter was sent on behalf of the party by his legal representative. This does not fall under the guise of privilege. In addition, the mother does not contest that proposals and requests for parenting time were made by the father. Frankly, it is difficult to understand why she would object to this evidence being included since the information is clearly innocuous


Exhibits "M," "P," "Q," "R," "S," and "T" consist of communications in which the father directly participated. The court found these exhibits admissible, as the father's participation gave some weight to the discussions. Moreover, the identification of all sources by name contributed to the credibility of their contents.


As for Exhibit "O," containing email correspondence between the paternal grandmother and the mother, the court determined it to be of limited relevance to the case. While it was not entirely irrelevant, the court attributed little weight to it due to its limited relevance to the core issues.


Conclusion


The case of Hunt v. Hunt, 2023 ONSC 5411, provides valuable insights into the admissibility of evidence in family law motions, particularly concerning hearsay and privileged information. The court's interpretation of Rule 14(18) reflects the evolving nature of family law, emphasizing flexibility while maintaining the importance of personal knowledge in affidavits.

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