Ontario Court Warning on Using Text Messages as Evidence | Family Lawyers
On Hearsay and Text Messages
The warning by the Ontario court in a recent case was straightforward: Family litigants need to be wary when including text messages and emails in their affidavit evidence.
In Chrisjohn v. Hillier the parents were in a custody battle over a their 3-year-old child. The father, who was the primary residential parent, brought an urgent motion to have the child returned to him. The mother had been withholding the child from him, even though she was only entitled to restricted access under a prior court order. She accused the father of having a substance abuse problem, and justified keeping the child because – based on her observations at a recent access exchange – she had concluded he was drunk or at least had been drinking when he took over the child.
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00:15 'On Hearsay and Text Messages' 00:18 The warning by an Ontario court in a recent case was straightforward: 00:24 Family litigants need to be wary when including text messages 00:28 and emails in their affidavit evidence. 00:32 In a recent case of Hillier, the parents were 00:35 in a custody battle over their 3-year-old child. 00:39 The father, who was the primary residential parent, 00:43 brought an urgent motion to have the child return to him. 00:48 The mother had been withholding the child from him, 00:53 even though she was only entitled to restricted access under a prior court order. 01:01 She accused the father of having a substance abuse problem, 01:05 and justified keeping the child 01:08 because - based on her observations at a recent access exchange - 01:12 she concluded he was drunk or at least had been drinking when he took the child. 01:19 The father denied this, and in his affidavit materials filed on the motion 01:24 swore that he had not been drinking that day. 01:28 His own mother - with whom he lives - also attested to the same. 01:36 According to the mother's affidavit, she called the police that night, 01:40 and they had apparently confirmed "it was clear" 01:43 that he was "intoxicated" after attending at his home. 01:48 Problems with these assertions that under Canadian law of evidence, 01:53 this was actually "hearsay" evidence. 01:56 With narrow exceptions, the mother's affidavit evidence 02:01 should have stuck to what she actually knew, saw, or understood that day - 02:08 not her view of what the police thought or said.
