Recent case: Admissibility of CICB decision in custody case

Women often wonder what kinds of evidence of abuse they can introduce into their family law case. In the case of Scarlett v Farrell, 2014 ONCJ 645, the wife sought to introduce the decision of the Criminal Injuries Compensation Board into the case to support her contention that her husband had abused her.

The father was seeking access to the couple’s child, which the mother was opposing. Her case included the claim that he had seriously abused her physically and emotionally over the course of the relationship, which she argued was a factor for the court to consider when making a decision about access. To support her own evidence, she wanted to introduce the decision of the CICB, which had found that the father had, in fact, abused her in a series of incidents over a 2½-year period.

The father took the position that the CICB report was hearsay and therefore not admissible and, furthermore, that the prejudicial impact would outweigh the probative value, also rendering it inadmissible.

In reaching his decision, Justice Spence starts by confirming that the report is hearsay and then examines the various legal exceptions to the hearsay rule. He first finds that the CICB decision is not a public document, so cannot be admitted on that basis.

He then explores whether or not the decision might be admissible because it is needed to buttress the mother’s credibility at trial and concludes that it cannot.

Finally, he examines the “necessity and reliability” exception, but concludes that the CICB decision does not fit here either. Because the evidence on which the CICB based its decision all came from people who could be called to testify in the custody case (the mother, her mother and her therapist) and because the father did not have the opportunity to challenge any of this evidence, Justice Spence rules that the decision does not fit within any of the exceptions to the hearsay rule and does not permit it to be introduced.

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