Hearsay
What is hearsay?
Hearsay evidence is when someone makes a statement that is not involved with the case. Typically, hearsay evidence is inadmissible or not accepted in court because it is not trustworthy compared to people directly involved in the case and would make statements under the oath. Additionally, hearsay evidence cannot be questioned during cross-examination.
When is it admissible?
In some situations, hearsay evidence might be admissible or accepted in court if:
- The hearsay evidence is reliable.
- The hearsay evidence can be used for context such as show what someone is thinking or to understand other evidence.
- The hearsay evidence is needed for necessary situations.
Which rule of Family Law Rules governs hearsay?
Rule 14(19)(a) of Ontario’s Family Law Rules states if someone wants to use hearsay evidence in a written statement (an affidavit), they must state the person who told them the evidence and the person with the hearsay evidence must state they believe the hearsay evidence is true.
Discuss the ongoing concern about hearsay affidavits in family law.
There’s an ongoing concern about hearsay affidavits in family law because people can state hearsay evidence in their affidavit, but not mention the person who supposedly had the information or was the witness, which goes against rule 14(19)(a). This means, hearsay affidavits are not always truthful or reliable.
Why is it important to be able to cross-examine a witness?
It is important to cross-examine a witness because without being able to question a witness’s statement, there’s a temptation to include unproven statements from people that are clearly not identified which keeps them safe from further questioning. This is why cross-examination is important to avoid that.
Why is the use of hearsay more flexible when it involves children.
Children must be heard in cases that affect them. Sometimes, it’s not a good idea or the best interest for children to testify in court. For that reason, hearsay evidence should be flexible when children are involved. There’s a new common way for children to be heard in order for the hearsay evidence to be admissible, that is called Voice/Views of the Child Report. This is where experts or reports from the Office of the Children’s Lawyer talks to the child and then shares what the child has said with the court.