Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law
A recent decision in Mwanri v. Mwanri raised a narrow – but important – legal point: When lawyers make submissions in family court, these are simply that: submissions, assertions, or stated positions on behalf of one of the parties. They are not tantamount to “evidence” that a court can consider in making its decision, and it is an error for a court to apprehend them that way.
In Mwanri v. Mwanri the parents were involved in a custody dispute over their two children. By way of a court order the father had been granted sole custody of an older son, while the mother had been granted sole custody of their daughter. But despite that earlier order, in 2014 the daughter decided to go live with the father. Seeking to formalize that new arrangement, the father brought a court motion to vary the original custody order as well as his related child support obligations.
At the motion hearing the evidence included the results of interviews with the daughter conducted by the Office of the Children’s Lawyer (OCL), which had become involved in order to monitor the existing parenting and access schedule. Based on those OCL interviews, together with some evidence from the mother, the motion judge rejected the father’s motion, ruling that he had actually influenced the daughter to move out of the mother’s home and to move in with him instead. That adverse finding was exacerbated by the motion judge’s conclusion, in connection with certain prior directives, that the father’s conduct “amount[ed] to a failure to comply fully with the existing court orders, if not outright contempt of them”.
By way of an appeal launched by the father, the Ontario Court of Appeal was asked to review the motion judge’s conclusions for errors.
First of all, the Appeal Court pointed out that the mother had given sworn evidence that supported the motion judge’s finding that the father had influenced the daughter’s decision to change her place of residence. So the motion judge’s reliance on that evidence was warranted.
However, the Appeal Court added, “The motions judge’s reference to the OCL’s interviews with the daughter is a different matter.”
The motion judge had never been given an actual report or other evidence from the OCL, so were no formal documents tendered. Rather, the motion judge had merely drawn conclusions based on the oral submissions by the OCL’s lawyer to the effect that the OCL interviews showed the father’s attempts to influence the daughter to move and disobey the existing orders. This, the Court of Appeal found, was a mistake on the motion judge’s part. As the Appeal Court put it:
Submissions by counsel are not evidence. They are simply submissions and nothing more.
(Still, nothing ultimately turned on that particular finding of error, since there was also credible and sufficient evidence from the mother – which the motion judge had believed – that the father had influenced the daughter).
The Appeal Court also rejected the father’s notion that he had technically been accused by the motion judge of being in contempt, even while it confirmed that he had indeed failed to comply with certain aspects of the earlier order, including the directive to pay legal costs.
Those two aspects of the father’s appeal were accordingly dismissed (although he succeeded on some of the other numerous grounds of appeal that he had raised in connection with support, custody and other related issues arising from the initial order).
For the full text of the decision, see:
Mwanri v. Mwanri, 2015 CarswellOnt 18511, 2015 ONCA 843