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| Are unsworn statements admissible as evidence on a motion? |
The Family Law Rules require motions to proceed by way of sworn affidavits. In fact, Rule 14(18) of the Family Law Rules states:
“An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.”
Rule 14(19) states:
“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.”
The court in the case of Lisanti v. Lisanti [1990] O.J. No. 3092 considered whether unsworn statements are admissible as evidence on a motion. In that case, a motion was brought by the father for interim custody of the parties’ two children. The mother left the matrimonial home and went to a women’s shelter with the children, alleging that she had been abused by the father. The mother had spoken to others and then reproduced these conversations in a document that she then attached as an exhibit to her affidavit. The father’s counsel objected to its admissibility on the grounds that it was hearsay. On this issue, the court stated:
The allegations made in the exhibit are clearly stated to be hearsay. The tone is highly pejorative and prejudicial to the husband. The exhibit is not in affidavit form. No one swears as to the source of information outside his or her personal knowledge and deposes to a belief that the statements are true. Not the subject of an affidavit, no one can cross-examine on the statements, or the source of the information.
There has been a disturbing tendency in recent months to attempt to incorporate, in motion material, renditions of statements allegedly made by parties or other sources without their inclusion as an affidavit. The rules, however, require evidence on a motion to be by way of affidavit. The basis of that requirement is obvious. Without the possibility of testing an allegation through cross-examination, there is an incentive to swell the evidence freely with unsupported statements by persons not clearly identified and, therefore, safe from inquisition. That is the situation with this exhibit.
Similarly, in the case of Kavaner v. Jancsurak [2012] O.J. No. 4040, on a motion by the father for primary residence of the child, both parties attached to their respective affidavits letters from family and friends bolstering their positions. At the outset of the motion, the court informed both counsel that it was not prepared to put any weight on these letters. The court stated that “if the contents of these letters were important for the court to consider, counsel should have prepared proper affidavits that were duly sworn.”
Technically, unsworn statements are not admissible as evidence on a motion. Despite this, some judges will allow their admission on a motion under Rule 14(19). Practically, motions to strike hearsay evidence from the record are often heard by the very same motion judge who is otherwise adjudicating on the substantive relief. The best practice is for parties wanting the judge to rely on the evidence to have the author of the letter swear an affidavit containing the information. For those parties seeking to exclude such evidence, it is best to have the motion to strike that evidence heard by another judge and, if successful, to have the motion traversed to a fresh judge. |
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