Recent case: Admissibility of hearsay evidence

Chrisjohn v Hillier 2021 ONSC 1666: In this case, the father brought an urgent motion to have the child returned to him. The mother had withheld the three-year-old child, alleging that the father’s substance use posed a risk.

Much of the evidence presented by the mother was hearsay, and Justice Mitrow took the opportunity to address the issue of what he called “the unfortunate trend of inadmissible hearsay evidence seeping into evidentiary records on motions.”

In his decision, Justice Mitrow noted the 1990 case of Lisanti v Lisanti (1990 CarswellOnt 219), in which the judge 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.

In this case, the mother included some text messages from the father’s girlfriend to try to show that the father had been drinking on a particular occasion when the child was with him. She also included a copy of an electronic message from the mother of one of the father’s other children, which alleged he had alcohol and substance use problems.

In finding those exhibits of the mother inadmissible, Justice Mitrow noted that the use of electronic communication has become “a tool of injecting inadmissible evidence into an evidentiary record.” He also found that the Lisanti  analysis 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.

Justice Mitrow also found the mother’s recounting in her affidavit of what “police” had told her and what “officers” had said to be inadmissible because the police and officers were not identified by name.