The Ten Evidence ‘Rules’ That Every Family Law Lawyer Needs to Know

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Evidence, Family Law, Canada


I put ‘‘Rules” in quotation marks above, because I once wrote an article entitled ‘‘Are There Any Rules of Evidence in Family Law?” As I said there about the title:

I still cannot figure out if my title is facetious, or ironic, or a cri de Coeur of a frustrated counsel, or the evangelical call of an evidence professor, or just an accurate statement of the law. It was originally intended to be facetious, to emphasize that there are no ‘‘rules of evidence” in family law, even if we pretend there are. Or, maybe it is more ironic, to remind ourselves that there really are such ‘‘rules”, even if we say there are not. As counsel, on some days, the long ones, the title was my rant in the halls and environs of courtrooms. As an evidence professor, I believe that the evidence ‘‘rules” serve important systemic purposes, but then that is what you would expect. The more family law cases I read, I did begin to fear that my title was simply accurate. Not only accurate, by acceptably so, with no hint of wit or irony left.

The gist of the ‘‘Any Rules” article was eventually that there are evidence ‘‘rules”, or more accurately now, evidence ‘‘principles”, that do have real application in family law cases.

I was asked to boil down all of evidence law to ten, count ‘em, just ten ‘‘rules” that family law lawyers needed to know. This is a bit like picking the ten best Canadian albums of all time. We all know that Joni Mitchell and Neil Young will make the list. Same with evidence ‘‘rules”: ‘‘relevance” will make the list, as will ‘‘hearsay”, but there will be debate about others. Here’s my list:

(1) Relevance

(2) Admissibility Procedure

(3) Opinion: Lay and Expert

(4) Hearsay and Its Exceptions

(5) Business Records

(6) The Rule in Browne v. Dunn

(7) Impeaching and Supporting Credibility

(8) Illegally-Obtained Recordings, E-mails, Etc.

(9) Privilege for Settlement Negotiations

(10) Privilege for Confidentiality

In what follows, I am purposely keeping the paper brief and to the point. Those who want further details can consult my two articles on the subject or the Evidence in Family Law looseleaf or, if you really want that much more, one of the three leading Canadian textbooks on evidence law. I will not cover evidence issues specific to child protection, focussing upon the issues that most frequently arise in the general range of ‘‘private” family law cases.