On Hearsay and Text Messages
The warning by the Ontario court in a recent case was straightforward: Family litigants need to be wary when including text messages and emails in their affidavit evidence.
In Chrisjohn v. Hillier the parents were in a custody battle over a their 3-year-old child. The father, who was the primary residential parent, brought an urgent motion to have the child returned to him. The mother had been withholding the child from him, even though she was only entitled to restricted access under a prior court order. She accused the father of having a substance abuse problem, and justified keeping the child because – based on her observations at a recent access exchange – she had concluded he was drunk or at least had been drinking when he took over the child.
The father denied this, and in his affidavit materials filed on the motion swore that he had not been drinking that day. His own mother – with whom he lives – also attested to the same.
According to the mother’s affidavit, she had called the police that night, and they had apparently confirmed “it was clear” that he was “intoxicated” after attending at his home.
The problem with these assertions was that under the Canadian law of evidence, this was actually “hearsay” evidence. With narrow exceptions, the mother’s affidavit evidence should have stuck to what she actually saw her or understood that day – not her view of what the police thought or said.
This is in keeping with Rule 14(19) of the Family Law Rules, which expressly provides that an affidavit may only contain “information that the person learned from someone else”, if the information source is identified by name, and that the person signing it believes the information is true.
Faced with the mother’s impermissible affidavit, the court used the opportunity to lament what it called the “unfortunate trend of inadmissible hearsay evidence being included in affidavits”. It noted that as long as 30 years ago in another Ontario case called Re LiSanti v. LiSanti the court had struck out an exhibit to the wife’s affidavit that was not in the proper format and consisted of a lengthy prose statement that was clearly pejorative to the husband, and consisted of hearsay. The court in that older case wrote:
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 in 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.
The court in the more recent Chrisjohn v. Hillier ruling built upon those admonitions, and observed that the same sort of thing was going on in the present case, but with the exacerbating factor that the hearsay could include both text messages and emails. The court said:
In the present case, the mother appends as an exhibit some text messages from the father’s girlfriend that the mother submits show that the father had been drinking on the occasion in question.
The mother makes allegations about the father’s alleged history of substance abuse. As evidence of same, the mother attaches, as an exhibit, a copy of an electronic message from the mother of one of the father’s other children, alleging drinking and substance use by the father.
A difference, between today and the days of Lisanti, is the use of electronic communication as a tool of injecting inadmissible hearsay evidence into an evidentiary record.
The lesson from Lisanti has withstood the test of time and remains the law today. Litigants should remain vigilant in ensuring that motion material is restricted to admissible evidence. The temptation to append as exhibits to affidavits text messages, or email strings from third parties, who do not swear to their truth, must be avoided.
The mother’s aforesaid exhibits are inadmissible.
For Family litigants of all types, the court’s suggestion to be vigilant in avoiding inadmissible hearsay is a good one.
For the full text of the decisions, see:
Chrisjohn v. Hillier, 2021 ONSC 1666 (CanLII)
Re LiSanti and LiSanti, 1990 CanLII 4229 (Ont. C.J.)