Court Cases & Orders

Lack of Evidence Sinks Father’s Case

Written by Russell Alexander / (905) 655-6335

In a recent Ontario case, a self-represented father’s court motion was rejected, based mainly on flaws in his proffered evidence. The first was that it was sorely lacking in persuasiveness; the second was that it was both untrue and manufactured after-the-fact.

The separated parents had been to court previously, and had obtained a final Order from the court in connection with the custody, child support, and residence of the son they had together. The boy was now 18 years old and was still attending school.

A dispute later arose between them as to whether the son spent “not less than 40 percent of the time over the course of the year” with the father, in keeping with the language of the Federal Child Support Guidelines which potentially provides for lower child support in such scenarios. The father therefore returned to court to ask to have that Order varied, based on his assertion that he had physical custody of the son not less than 40 percent of the time.

But the court had many problems in assessing the merits of the father’s motion, beginning with the father’s evidence as to the time the boy allegedly spent with him. He filed a calendar with the court, purporting to document the times and dates the boy lived with him between 2010 and 2015, but it was riddled with errors and overstatements. For example, it failed to indicate the arrival or departure dates, and whether the son slept there overnight; it also double-counted certain stays at the father’s house, and included visits that lasted only a few hours.

Most tellingly, the court noted that the father did not put forward any such calendar on a previous motion in 2014, on a prior court appearance, even though it would have helped his case at the time. He also waited 4.5 years before seeking reimbursement for support amounts he allegedly overpaid, and then suddenly came up with a calendar ostensibly documenting the boy’s time with him.

lack of evidence

In contrast, the mother filed “a voluminous affidavit” containing evidence contradicting the father’s calendar. It included two calendars that were consistent with each other and with security video recordings that corroborated the son’s comings-and-goings, as well as airplane and hotel receipts. When viewed against the father’s calendar, it disclosed errors or at least called into question the father’s evidence respecting 67 dates in 2010, 81 in 2011, 59 in 2012; and 43 in 2013. (Faced with these errors, the father had tried to remedy his 5 years’ worth of poor record-keeping by obtaining an affidavit from the son as to the time spent over that period).

After weighing all the evidence, the court concluded:

The father has materially misstated the son’s presence with him during the years 2010 to 2013. His calendar was created retroactively as to those years. … [T]he father’s calendar cannot be taken at face value, is inaccurate and overstates his time with the son.

In the end, and “[g]iven the detailed evidence of the mother, the quantity thereof, and the father’s acknowledgment of the numerous errors in his calendar”, the court concluded that the father did not prove that his son spent a minimum of 40% of the time with him for the 5-year period in question, to the point where a variation of the original Order was warranted.

The case provides a good lesson to would-be family litigants who want to represent themselves in court: Make sure you have plenty of evidence to back up your position. And make sure your evidence is true.

For the full-text of the decision, see:

Martinuk v Graham, 2015 ONSC 6769 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.