By Legal Coach, Chyanne Sharma
In any legal matter, your role as a self-represented litigant is to present information to a judge that will help prove or disprove the facts of your case. To do this, one of the first things you will need to do is to gather evidence - but what does that mean and how do you do that? Well, to convince a judge to grant you an order based on what you asked for in your application, you will need to show the judge documents such as pictures, text messages, expert reports, emails, letters, and even live witnesses to support your arguments. For example, let’s say you want to prove that you have been paying all the section 7 expenses for your children. You can prove this by providing receipts to clearly show that the said expenses have come out of your pocket. This is considered to be your evidence. However, it is important to note that there are rules on what type of evidence can be admitted in court and it’s up to the judge to allow or dismiss certain types of evidence.
One of the main issues that self-represented litigants encounter is failing to present their evidence properly. This can be due to several reasons such as not understanding what type of evidence to present, using evidence that is not admissible or is irrelevant, or simply not having enough evidence. When making an argument on an issue, you should be asking yourself “how can I prove this?” If you can’t, it’s unlikely to be a successful argument. As legal coaches and paralegals, we understand how difficult it can be to put together evidence. To help you present your best case, we’ve put together a simple guide on what evidence is.
What are the different types of evidence?
In family law matters, the three most common ways a party can present their evidence is by viva voce, affidavits, and expert reports.
Latin for “living with the voice”, viva voce refers to evidence that is given orally by the parties involved in the family law matter or witnesses such as grandparents, friends, professionals, etc. This type of evidence is typically only used in trials and requires witnesses to take the stand in a courtroom where their evidence is given under oath this is known as their testimony. Viva voce evidence is advantageous where a party may want to cross-examine the other party to strengthen their case when assessing credibility. For example, when a party is inconsistent in their pleadings, they can be questioned on the stand to prove or disprove facts of the case. Or you may want to present a document to the judge, perhaps a medical report, but you require the doctor who wrote the report to explain their findings. Witnesses can also describe events that they heard or saw themselves. For example, your witness may have seen a verbal or physical altercation between two parties.
Witnesses are not allowed to sit in the courtroom during your trial and must remain outside until it is their time to provide their testimony. This is so that their answers are not influenced by the information that is being presented in court by other witnesses. The court also wants witnesses to be able to tell their testimony independently based on their own recollections and without the assistance of any notes. Witnesses are required to tell the truth and cannot lie under oath, even if it’s a question they do not like or will not favour a certain party’s position. If they do lie, there can be serious consequences such as paying a fine or going to jail. That’s why, when deciding who to call as your witness, you want to ensure that they are credible and can present themselves well in court.
In most legal proceedings, parties will use affidavits which are sworn written statements, as the most common way of presenting their evidence in court. Parties will outline their version of events or information that are true and relevant to their matter. Then, to support their statements, they attach exhibits which are documents such as pictures, emails, letters, text messages, bank statements, etc. For example, if your issue is about the denial of parenting time, then you would likely want to attach any text messages or emails to an affidavit that shows that the other parent has refused or denied your parenting time. Affidavits are important, especially in family law matters, because it’s how you ask the judge to consider your evidence and grant you your orders. If you don’t have the evidence, then the judge cannot consider anything. That is why you must carefully draft these documents in an organized way that helps support your argument. When you are at your hearing it is your role to walk the judge through your affidavit that outlines all the information, facts, and evidence. Therefore, you want to prepare these affidavits in a way that makes it easy for the judge to understand it if they were to read it on their own.
Another common way that many people introduce evidence is through expert opinions. These experts are qualified professionals that can give an opinion on a subject that a judge would not typically know about. Experts are considered to be credible because they have special knowledge on different areas based on their training, education, and work experience. For example, some experts are doctors, psychologists, business valuators, property appraisers, forensic accountants, etc. Their opinions can be introduced as evidence through reports which can be attached to an affidavit as an exhibit, or they can present their knowledge in court as a witness. Experts remain neutral and their role is not to favour one party’s position over the other – in fact, many experts in family law matters are jointly retained by the parties and ultimately, their role is to help the court. Parties have the opportunity to cross-examine these professionals at trial to support or challenge their reports and opinions.
What are the rules of presenting evidence?
Evidence, whether it’s in the form of witnesses, affidavits, or expert opinions, all have strict rules about how it can be presented in court. For example, it is generally not permitted to admit hearsay evidence unless it falls within one of the exceptions such as information that a child shares with a parent. Additionally, if you want to call a witness at a trial, you must ensure that you are complying with the Supreme Court Family Rules or the Provincial Court Family Rules on subpoenaing a witness. Some rules can be simple and straightforward, and others can be complicated and require parties to comply with different sub-rules. There are also new cases with decisions from judges that discuss what type of evidence is considered to be appropriate or inappropriate.
How can legal coaching help me?
When preparing for a hearing or trial, it is important to ensure that your evidence is being properly admitted into court, otherwise you might run the risk of having it inadmissible on procedural grounds which can hurt your family law case. Evidence is crucial to all legal matters, and at Coach My Case, our legal coaches and paralegals can provide you with the information and guidance you need to help put your best case forward. We work with you as a team so that you don’t have to navigate the legal system alone. Contact us today to book a free strategy session to get started. If you would like more information on evidence, check out our blog on the Facts about Hearsay.