Examining the principled exception to the hearsay rule in family law cases
Hearsay is particularly common in family law, considering that many litigants are self-represented and have likely not learned about the laws of evidence in school. However, even lawyers mess it up. Justice Conlan explained in A (A) v L (M), 2013 ONSC 7269: Family law trials have a tendency to devolve into exercises in "throw it up and see if it sticks". There are rules of evidence. They exist for valid reasons. If a party believes that it is important to have the trier of fact consider for its truth out of court hearsay evidence, then, absent consent, it is incumbent on that party to tender that evidence in the proper way. The Court must be satisfied on balance that the hearsay evidence is admissible — necessity and threshold reliability must be established. In certain circumstances, hearsay can be admitted into evidence as an exception to the hearsay exclusionary rule.
The criminal law case of R v Bradshaw, 2017 SCC 35 reiterates what the meaning of hearsay is:
Hearsay is an out-of-court statement tendered for the truth of its contents. It is presumptively inadmissible because — in the absence of the opportunity to cross-examine the declarant at the time the statement is made — it is often difficult for the trier of fact to assess its truth. Thus hearsay can threaten the integrity of the trial's truth-seeking process and trial fairness. ...
For instance, if a witness testifies about what someone else told them—who is not present to testify—and they testified this for the truth of the other person’s statements, this would be hearsay. The recent family law decision of Framer v Framer, 2021 ONSC 5913 explains the reason behind the exclusionary rule:
The rule excluding hearsay is a well-established exception to the general principle that all relevant evidence is admissible. The central reason for the exclusion of hearsay is the general inability to test its reliability. Without the declarant in court, "...it may be impossible to inquire into that person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function."
The case goes on to elaborate that if a hearsay statement is necessary and trustworthy then it can still potentially be admissible as an exception. Generally, necessity means that there is no other place to get the information that is being tendered, and trustworthiness is the inquiry into whether the information is truly reliable:
…[T]he extent to which hearsay is problematic depends on the context of the case. In some instances, such evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. In those instances, a hearsay statement may be admitted if it is necessary, and if its contents are trustworthy because of the way it came about, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. This is the principled exception to hearsay described by Charron J. in R. v. Khelawon.
Hearsay may be admitted according to the principled exception, if indicia of reliability and necessity are established on a voir dire. "Under the principled exception, hearsay can be exceptionally admitted into evidence when the party tendering it demonstrates that the twin criteria of necessity and reliability are met on a balance of probabilities".
A voir dire is like a mini trial within the trial, to determine whether the evidence should be admissible based on necessity and reliability. The case elaborates:
In R. v. Khelawon, Charron J. set out a multi-step "functional approach" to hearsay. The first step, before embarking on a hearsay admissibility inquiry, is to determine whether the proposed evidence is even hearsay. As Charron J. said, misguided objections and misunderstandings about what constitutes hearsay are not uncommon.
At this stage, the judge (or arbitrator) should also consider the potential impact of the hearsay to the issues in the case, and he should immediately identify the hearsay dangers of admitting the evidence.
Identifying the dangers of admitting the evidence is simply because a judge must determine whether the probative value of the hearsay statements outweigh the prejudices that arise from admitting the hearsay evidence; it is a balancing act. The case goes on:
Prior to admitting a hearsay statement under the principled exception, a judge (or arbitrator) should first determine on a voir dire that necessity and reliability have been established. The onus is on the person seeking to adduce the evidence to establish the necessary criteria for its admission.
Only admissibility, which under the principled approach involves the assessment of necessity and threshold reliability, are determined on the voir dire. The evidence's ultimate reliability, if admitted, is considered by the judge (or arbitrator) when he or she considers the evidence as a whole to arrive at a decision.
Threshold reliability is established when the hearsay is "sufficiently reliable to overcome the dangers arising from the difficulty of testing it". This is why the judge (or arbitrator) must have first identified specific hearsay dangers at play, in order to consider whether the dangers can be overcome. The hearsay dangers relate to difficulties assessing the declarant's perception, memory, narration or sincerity. They are to be defined with precision, to permit "a realistic evaluation of whether they have been overcome".
The hearsay dangers may be overcome if there are adequate substitutes for testing truth and accuracy; this is procedural reliability. Or, if there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy; this is substantive reliability. Procedural reliability and substantive reliability may work in tandem and are not necessarily mutually exclusive. Factors relevant to one may compliment the other.
Procedural reliability is established when "there are adequate substitutes for testing the evidence" given that the declarant has not "stated the evidence in court under oath and under the scrutiny of contemporaneous cross-examination". Examples include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. Some form of cross-examination, such as preliminary inquiry testimony or cross-examination of a recanting witness will usually be required.
In other words, while a person might not be available to testify in court to an incident they observed, they might have already given a video statement to the police regarding the alleged incident. As such, these statements might be considered procedurally reliable and possibly be admitted notwithstanding that the witness did not testify. There is also the matter of substantive reliability:
Substantive reliability means that the statement is inherently trustworthy. The judge (or arbitrator) should determine the circumstances in which the statement was made, and evidence, if any, that corroborates or conflicts with the statement. The standard for substantive reliability is high, but the "circumstantial guarantee of trustworthiness" does not require "absolute certainty". The judge (or arbitrator) must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process".
Superior court cases like A (A) v L (M), 2013 ONSC 7269 reiterate that if a party is going to rely on hearsay statements for the truth of their contents, they must tender them as such. In other words, they must go through the motions of the threshold test, demonstrated above, or else the judge will probably not give any weight to the statements:
Neither party tendered any of the out-of-court statements for their truth. No voir dire was conducted with respect to any of the hearsay evidence. None of the hearsay evidence is admissible for its truth. I have not considered any of the hearsay evidence, for its truth, in deciding this case.
As a result, I make no findings that the alleged incidents which are the subject of the hearsay evidence actually happened. For illustrative purposes, I will give one example with regard to each parent.
The inherent dangers of hearsay evidence are well known. In this case, for example, to accept the "evidence" in support of the allegation that the father sexually assaulted N. and P. would be preposterous. We have the mother testifying at trial as to what someone at the school allegedly told her in terms of something allegedly reported to the school by a neighbour. None of N., P., the neighbour or the school official testified and could be cross-examined. As another example, to accept the "evidence" in support of P. having threatened to stab A. with a knife would be very unsafe. P. did not testify. A. did not testify. The play therapist who reported the matter to the Children's Aid Society did not testify.
In this case, the mother's position was very clear from the outset of the trial — none of the hearsay evidence from the children was being tendered for its truth. The position of the father was less clear initially but became more definitive during the trial. At one point, I specifically asked counsel for the father whether the Respondent wished to have a voir dire to determine the admissibility, for its truth, of out of court statements allegedly made by the children. After consultation with her client, counsel for the Respondent answered that question in the negative.
So, to repeat myself, I have not considered any of the hearsay evidence, for its truth, in deciding this case.
Important to note, rule 14(19) of the Family Law Rules, rules for motions for temporary orders, states:
(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).
In other words, hearsay can be admitted into affidavits, as was the case in Ainger v. Posendorf, 2019 ONSC 2220, so long as the two conditions are met:
Hearsay evidence is permissible under r. 14(19) of the Family Law Rules which provides that an "affidavit may also contain information that the person learned from someone else" but only if "the source of the information is identified by name and the affidavit states that the person signing it believes the information is true".
While this may be the case, admissibility does not equate to weight. In other words, just because something is admissible does not mean that it will be afforded a certain degree of weight—this is a separate analysis.
Obvious takeaways? Hearsay normally occurs when a witness testifies to an out-of-court statement made by someone else, to prove the content of the matter. This is generally not allowed because the reliability of the claim cannot be assessed. Unfortunately, hearsay statements are frequent in family law. As such, parties must look to the principled exception to hearsay, if they are going to rely on out-of-court statements.