As we have seen from years of family law litigation, divorce cases can get very heated. Wire tapping, spyware technology, you name it, can be a tactic used by opposing parties to try and bring the former partner to “justice”. But how can a party seek justice, by using evidence acquired in such an unjust way?

In U. (A.J.) v. U. (G.S.), Madam Justice D.L. Pentelechuk notes the issues surrounding illegally obtained evidence and hearsay in this custody argument. In this particular case, the evidence used by a psychologist in conducting a “parenting time/parenting responsibility assessment” was presented to her in a “Divorce Defence Book” created by the father in the custody battle. The book contained information revealing that the mother was involved in sexually inappropriate behavior on online chat rooms.  This information was obtained through spyware technology installed on the mother’s computer. The Defence Book contained opinion evidence and hearsay that skewed the assessment in favor of the father.

The psychologist had turned out to rely on this evidence that was not admissible at trial and therefore infringed on the laws of evidence. If one cannot use certain evidence in trial, then an individual who has the power to significantly effect the outcome of a trial, should not be able to rely on that evidence either. Justice Pentelechuk highlights this point when she states:

“In my view, assigning “appropriate weight” to an experts opinion where a significant amount of the underlying facts and assumptions are unproven hearsay is an illusory exercise.“

Justice Pentelechuk appears to be quite protective of the laws of evidence when she notes her disapproval of the idea that there should be a relaxation of the rules/laws of evidence in family law litigation.

In family law cases, especially those involving children, the courts need to pay particular attention to what is right and just. This case is a reminder that in order to achieve a just result, the evidence relied upon must be gathered and assessed in a just way.



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