On hearsay, family courts must 'return to basics' on rules of evidence, says Gene Colman
Two recent appeals at the Ontario Divisional Court have confirmed that courts can rely on government-published recommendations concerning the COVID-19 vaccine when assessing the best interests of the child.
Both A.V. v. C.V., 2023 ONSC 1634 and Spencer v. Spencer, 2023 ONSC 1633 dealt with when a judge should grant a parent decision-making authority over their child’s vaccination on an interim motion. One issue in the appeals was whether the motion judge should have admitted into evidence the vaccine-related government recommendations. The court followed the Court of Appeal ruling in J.N. v. C.G., finding “reports of public officials are admissible into evidence for the truth of their contents, pursuant to the public document exception to the hearsay rule.”
“Both cases tell us that Government-published edicts are admissible and reliable hearsay. In other words, s. 25 of the Ontario Evidence Act is alive and well,” says Toronto family lawyer Gene Colman.
In A.V. v. C.V., Justice Shaun O’Brien writes that parties may rely on federal government publications concerning COVID-19 vaccination without the “unnecessary burden” of calling on a government representative. He adds that courts may take judicial notice of the vaccine’s regulatory approval – “an exception to the rule of formal proof that requires parties to present evidence to establish facts.” Judicial notice requires that the facts are either “so notorious or generally accepted as not to be the subject of debate among reasonable persons,” or “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.”
Section 25 of the Ontario Evidence Act states:
“Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be published by or under the authority of the Parliament of the United Kingdom, or of the Imperial Government or by or under the authority of the government or of any legislative body of any dominion, commonwealth, state, province, colony, territory or possession within the Queen’s dominions, shall be admitted in evidence to prove the contents thereof.”
Colman takes issue with the type of evidence typically deemed admissible in family law disputes. Too often, he says, courts are permitting “hearsay, of every sort and nature,” and family law needs to “return to basics” on the rules of evidence.
Colman says courts tend to ignore Justice Henry Vogelsang’s warning, 33 years ago, in LiSanti and LiSanti, 1990 229. In this custody dispute, Vogelsang rejected the inclusion of the mother’s “greatly prejudicial and scandalous” hearsay evidence against the father. The judge noted an increasing tendency at the time to submit motion material consisting of statements allegedly made by parties or others without including them in an affidavit, and presented in a manner which is difficult to verify.
Colman is managing partner of the Gene C. Colman Family Law Centre in Toronto. He has been practising law since 1979.
In addition to assorted information from the internet, in Colman’s practice he commonly sees parties take a report from a social worker, counsellor, dance instructor, or some other party, and attach it in a letter to the affidavit.
“You can't cross examine on a letter, and judges rely on it, like Lisanti never existed,” he says. “My beef with the bench is that by and large, they have ignored Lisanti.”
“It makes for the Wild West out there. Anything goes.”
Since the emergence of COVID-19, there have been many disputes over vaccines, lockdowns, and other restrictions. In February, Marta Siemiarczuk told Law Times that family law is filled with self-represented parties who do not have the resources to invest in experts or research, and often want to use information found on the internet. Siemiarczuk, a family law, estates, and civil litigation lawyer and partner at Nelligan Law in Ottawa, said that after the Court of Appeal ruling in J.N. v. C.G., the courts are likely to be “much more stringent” in how they treat this type of evidence.
The issue in J.N. v. C.G. was a disagreement between parents over whether to vaccinate their children. The father, who was in favour of vaccination, brought a motion asking for sole decision-making authority on the matter.
The mother argued that the safety and efficacy of the vaccine was still unknown. But what she submitted in support of her position was “nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all,” said Justice Jonathon George of the Ontario Court of Appeal.
The father, on the other hand, had relied on information from Health Canada and the Canadian Paediatric Society, which supported his view that “all reputable health authorities had found it to be safe and effective.”
Superior Court Justice Alex Pazaratz had taken a different view from Justice George when the case was before him. “The professional materials filed by the mother were actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father,” he said. Justice Pazaratz relied on the mother’s evidence as credible expert evidence and dismissed the father’s motion.
The Court of Appeal found that Pazaratz had failed to conduct a meaningful analysis of the father’s evidence, which he said met the criteria for judicial notice.
