The court system in Canada is an adversarial system. The basis of an adversarial system is competing arguments and competing, and often conflicting evidence. Family law litigation is no different. Litigant's will paint a picture that is favorable to the case they are presenting and the courts are left to be the final arbiter and determine what version of facts they believe to be accurate.
Family law litigation often starts with lawyers filing affidavits and using those affidavits as evidence before a judge for the relief they are seeking. The opposing party will then file an affidavit which will often contradict what the other party has said. The question then becomes what happens when a judge has to consider these affidavits that tell two markedly different stories or differ on very material facts. The Court of Appeal in the case of Charles v. Young held that in cases where there is a dispute on material facts that the court must test the veracity of evidence, which includes looking at the credibility of the parties. The credibility of the parties is tested by giving live evidence. This is done by way of either a trial or what we call a viva voce hearing.
This issue of competing evidence was an important issue in the case of Anand v. Anand, which I argued at the Court of Appeal. The case dealt with a matter where a Court of Queen's Bench judge directed an interim spousal support application to a viva voce hearing after counsel's submissions that significant credibility issues and conflicting evidence was present in the five affidavits before the court. The Queen's Bench justice did not consider the evidence before making the direction that the matter go to a viva voce hearing. We appealed the order and at the Court of Appeal opposing counsel relied on the position of the Court of Appeal in Charles v. Young and argued that the Queen's Bench judge made no error in not making an order for interim spousal support until the live evidence was heard and tested in front of a judge. Our position was that the Queen's Bench judge should have considered the undisputed evidence, and had he done so, he would have made an award for interim spousal support.
The Court of Appeal allowed our appeal on that particular issue and provided some clarity to the proposition put forward in Charles v. Young. The Court of Appeal looked at "...what flows from the undisputed facts, in other words, taking the evidence most favorable to the respondent ex-husband." The length of the marriage, income of the parties and the current circumstances of the parties were all undisputed facts in the five affidavits that were before the lower court.
The decision is practical and provides some guidance to counsel and to the courts as to how to deal with the realities of conflicting affidavit evidence in family law proceedings.
Family law litigation often starts with lawyers filing affidavits and using those affidavits as evidence before a judge for the relief they are seeking. The opposing party will then file an affidavit which will often contradict what the other party has said. The question then becomes what happens when a judge has to consider these affidavits that tell two markedly different stories or differ on very material facts. The Court of Appeal in the case of Charles v. Young held that in cases where there is a dispute on material facts that the court must test the veracity of evidence, which includes looking at the credibility of the parties. The credibility of the parties is tested by giving live evidence. This is done by way of either a trial or what we call a viva voce hearing.
This issue of competing evidence was an important issue in the case of Anand v. Anand, which I argued at the Court of Appeal. The case dealt with a matter where a Court of Queen's Bench judge directed an interim spousal support application to a viva voce hearing after counsel's submissions that significant credibility issues and conflicting evidence was present in the five affidavits before the court. The Queen's Bench justice did not consider the evidence before making the direction that the matter go to a viva voce hearing. We appealed the order and at the Court of Appeal opposing counsel relied on the position of the Court of Appeal in Charles v. Young and argued that the Queen's Bench judge made no error in not making an order for interim spousal support until the live evidence was heard and tested in front of a judge. Our position was that the Queen's Bench judge should have considered the undisputed evidence, and had he done so, he would have made an award for interim spousal support.
The Court of Appeal allowed our appeal on that particular issue and provided some clarity to the proposition put forward in Charles v. Young. The Court of Appeal looked at "...what flows from the undisputed facts, in other words, taking the evidence most favorable to the respondent ex-husband." The length of the marriage, income of the parties and the current circumstances of the parties were all undisputed facts in the five affidavits that were before the lower court.
The decision is practical and provides some guidance to counsel and to the courts as to how to deal with the realities of conflicting affidavit evidence in family law proceedings.