12. Evidence at Trial

In this chapter you will learn what evidence to bring forward, how to organize it, and how to use it in court. This is an important step in building your case. Evidence is defined as “the facts used to support a conclusion”. The judge will decide based on the evidence, relevant to the law, that is presented at trial.

Only evidence that is relevant and material to your case is allowed.

Relevant: evidence that relates directly to the issues in your case.

For example, if you are arguing that you should have the majority of the parenting time:

• Relevant Evidence: evidence showing the history of the children’s care, evidence of parenting styles, and the wishes of the older children.
• Not Relevant Evidence: evidence of your spouses’ personal failings (unless you can show that this affects the best interests of the children).

Material: evidence that either proves or disproves facts at issue in your case.

For example, if you are divorcing and are only in court to divide assets:

• Material Evidence: when you purchased your house.
• Not Material Evidence: evidence that your spouse cheated on you.

Take inventory of both documentary and oral evidence and fill out the Evidence Inventory Worksheet. This will help you keep track of your evidence so you can be sure you have evidence of all of the elements of your case and can present a stronger case.

Download the Worksheet

Fill in the worksheet organized by issues. Identify the issue the evidence falls into, what the evidence is and any identifying details about it, and why the evidence is important to your case. (For example, Issue: Extraordinary Child Support, Evidence: Hockey lessons receipt, Specifics: the child’s 2020 lessons for $300, Relevance: Claiming it as a special expense, want my former spouse to pay for his share of it since I paid it in full.)

Issue: ________________________________________________________________________________

Evidence: _____________________________________________________________________________

Specifics: _____________________________________________________________________________

Relevance: ____________________________________________________________________________

Issue: ________________________________________________________________________________

Evidence: _____________________________________________________________________________

Specifics: _____________________________________________________________________________

Relevance: ____________________________________________________________________________

Issue: ________________________________________________________________________________

Evidence: _____________________________________________________________________________

Specifics: _____________________________________________________________________________

Relevance: ____________________________________________________________________________

In legal matters, there are three types of evidence:

• Documents: This can be any physical or electronic record that provides information. (e.g. – contracts, receipts, emails, pictures, videos, etc.).
• Oral evidence (witnesses testifying): This is testimony given in court (by a witness, a party, or an expert witness allowed to give their opinion).
• Physical: An actual object relevant to your case (e.g. jewelry, etc.).

The evidence you use should support your claim and allow the judge to make the conclusion that the order you requested should be granted. For example, if the conclusion you want to reach is that you have been the primary caregiver of the children, your evidence to support this might be statements from yourself and others familiar with your family stating that you generally take care of the children, pick them up from school, and drive them to their activities.

Document evidence is not just paper documents. Document evidence could include pictures, videos, sound recordings, text messages, emails or something else. You will most likely need a range of document evidence to prove your case.

For example, in a family lawsuit, the document evidence might include the marriage certificate, an assessment of property value, a report from a counselor, and email communications. To be successful in court, you need to have your document evidence organized.

Using documents at court

Any document, photograph or object that you wish to use to prove a fact at trial may be used as evidence. Things that have been entered into evidence are called “exhibits” and each exhibit is logged in the court’s record. Each exhibit is numbered for easy reference. You should make a list of the things that are entered into evidence and their exhibit number.

Entering an exhibit

In most courts, if you wish to enter a document, photograph or object as an exhibit, you must either have the agreement of the other party to use that evidence in court or have a witness identify the thing. “Identify the thing” means that the witness is present in court and says under oath / affirmation that they made, saw, or had possession of the thing and recognize it.

You must then show it to the other party, and then ask that it be entered as an exhibit. The judge will consider whether the thing should be allowed as evidence, and will then enter it or refuse to enter it as an exhibit. If entered, the court clerk will then assign a number to the exhibit.

To have a written document entered as an exhibit, you must prove that:

• It is accurate;
• It fairly represents the facts and is free of any intention to mislead; and
• It can be verified under oath/affirmation by the author or creator, or another person capable of doing so.

To have an object, rather than a document, entered as an exhibit, you must prove that:

• it is relevant to an issue in the case;
• it is authentic or real (for example, that it is the original object and that it has not changed in any way that could be misleading); and
• you must be able to account for everything that happened to the object since you acquired it.

To have a photograph, videotape, audiotape or any other kind of recording, like a computer file entered as an exhibit, you must prove that:

• it is accurate;
• it fairly represents the facts and is free of any intention to mislead through, for example, editing or camera angles; and
• the person who made the recording can verify it on oath.

Ideally, it is best if you can put the original document or recording into evidence. However, if you cannot produce the original, you may be able to enter a copy. If authentication is required, you may need to get someone to authenticate the copy.

Steps of preparing document evidence

• Gather: Collect all the documents you have that might be relevant to your case (for example, receipts, assessments, emails, medical records, etc.).
• Organize: You need a system for sorting all of the document evidence you gather. It will be helpful to have a series of containers to hold the document evidence. Some people use envelopes, file folders, boxes, and / or filing cabinets. The key is to have a system that will help keep you organized, relevant to the issue to which they apply.

Sort your documents according to the issues. Create separate files for each issue. For example, have one file for child support and extracurricular activities (such as hockey equipment receipts) and have another for property division.

As you gather document evidence, you will find it helpful to create sub-categories for some of the key issues. For example, with the property division file, you might have individual files for documents related to the house, debts, cars and household items. Whatever works for you, have a system and stick to it.

• Assess: Consider each document. Is it really helping your case? How? Be specific. Judges do not like reading through stacks of irrelevant information. Moreover, they do not want “dirty laundry” stories about matters that are likely legally irrelevant. Include only relevant and material evidence that supports the point you are trying to prove.

The other type of evidence presented in court is oral evidence. This is when a person provides verbal information in court. To testify means to provide oral statements in court that the witness swears / affirms are to be true.

There are two types of oral evidence:

1. Testimony of parties: This is when you or the other party named in the case gives sworn / affirmed oral statements in court.
2. Testimony of a witness: This is when a person who is not a party in the case comes to court to answer questions under oath / affirmation.

During the trial you will be able to take the witness stand and testify in support of your own position, if you wish to do so. When doing this you will be testifying just like any other witness. You will have to take an oath or affirm (promise) to tell the truth, you will give your evidence (it need not be question and answer, but may be a narrative), and the other party(ies) will be able to cross-examine you (ask you questions that you will be required to answer). Often, it is helpful to testify because you have first-hand knowledge of the facts. If you testify, you will need to truthfully answer the questions asked by the other party as well as the judge.

You will not be allowed to argue your case while you are testifying. This means that you cannot explain the legal issues or why you believe the court should decide in your favour. The time to make your argument is when the evidence is finished and you and the other party give your closing arguments.

When you are testifying:

You and the other party may each decide to ask people to come to court to give evidence to help prove your case. These are witnesses. This is not mandatory; you can decide not to call witnesses. Witnesses will need to take an oath or affirm to tell the truth. They will need to answer questions asked by both parties and the judge. When you call a witness to court you will get to ask them questions first.

When questioning your own witnesses, you can only ask open-ended questions that do not suggest an answer – that is, questions that are not leading (e.g. did anything unusual happen at the birthday party?). The other side may then ask questions, but because it is not their witness, they may ask leading questions (cross-examination) (e.g. you saw a fight break out at the birthday party did not you?). Once the other party is done their cross-examination questions, you can re-examine the witness i.e. follow-up with any questions that arise from their evidence, that have not already been addressed – those questions must also be non-headings. A witness cannot lie when they answer (that would be perjury). If they do, there may be serious penalties, such as a fine or jail time. See Section 13.4: Witnesses for more information on questioning witnesses.

Some people will decide not to call a witness because they believe the other party cannot prove their case. However, a judge can make inferences about what did or did not happen if you decide not to call relevant and material witnesses.

Who to call as a witness?

You may call witnesses to give evidence on any issue related to the claim. You should only call a witness if they can give evidence that will help you strengthen your position or weaken the other party’s position. If you have documents you want to present to the court, you may need to have a witness explain them or verify their authenticity. Witnesses can also give evidence about things they heard or saw. For example, if your neighbour told you about seeing a fire in your backyard, you couldn’t testify about what your neighbour told you (that would usually be inadmissible hearsay), but you could have your neighbour provide this information that they observed directly in court.

It is important that the witnesses you choose are credible, articulate, and sincere. You cannot tell your witnesses what to say other than to tell the truth. But it is helpful to review with them the questions that you will ask and to understand the information they will provide. It is also helpful to consider what questions the other party or the judge might ask them. Remember that it is not the number of witnesses you call that counts, but the relevance and materiality of what they have to say.

Requiring a witness to attend

A witness is notified that they need to attend court when you serve them with a court form called a subpoena or summons to witness. A blank form may be obtained from the courthouse. You may be required to file the form in court before you serve it on (deliver to) your witness. You will fill out the name and address of the witness and the date and time of attendance, and serve it on the witness. Keep copies for you to use to prove service.

It is a good idea to serve all witnesses with a subpoena or summons, even if they promise they will come. If a witness has been summoned but fails to come to the trial, the court may allow you time to get them to attend or may issue a warrant for their arrest. The witness may be ordered to pay the costs caused by their failure to come to court. If you did not give a witness a subpoena or summons, and they do not come to court, the judge might go ahead with the trial and you would not have that witness’ testimony to help you prove your case.

Each witness gets a certain amount of money as compensation for the time spent in coming to court, along with travel and meal expenses. You are responsible for paying this cost for the witnesses you call. Witness fees are usually set out in the Rules of Court.

Expert witness

In certain situations, you may want to call an expert witness to present opinion evidence. An expert witness is a person who has special knowledge about a subject, like child psychology or accounting. An expert witness is called to shed light on issues that are complex and outside of common knowledge. They may give their opinion about issues in which they have expertise.

Usually witnesses are not allowed to present their opinions at court. An exception to this rule is expert witnesses. Experts are allowed to give their opinion on something if they have special knowledge about that thing. Experts cannot offer opinions outside of their area of expertise. For example, a child psychologist cannot provide an opinion on how to divide your pension but can talk about what might be positive parenting time for the child.

If you want to present expert evidence in court, you must:

• Get the expert to prepare a written report and their resume;
• Deliver this report and resume to the other party before the trial; and
• Have the judge accept that the witness is qualified (based on education and / or experience) as an expert.

Expert report

For an expert to testify at a trial, you will need to serve the other party with a report and resume from that expert. This must be done well before the trial. The exact number of days before the trial that you must give an expert report to the other party will depend on the Rules of Court for your court, and any orders that a judge might have made in your case.

The requirements for expert reports vary across Canada so you should review your own jurisdiction’s Rules of Court. Usually, however, the expert report should set out the expert’s name, address, qualifications and describe what the expert will say at trial. The report must state the expert’s findings, opinions and conclusions. It usually should also state the documents, calculations and data that they used in reaching their opinions or conclusions.

The trial judge will usually not accept a summary of the report prepared by you or another party; the full report by the expert must be used at trial. In most cases, the expert will also have to be at the trial to explain their opinion and answer questions about it.

Once the report is produced and the witness is established as an expert, that expert may be examined and cross-examined at trial about their opinions, including any discussions between the expert and the person who hired the expert.

Establishing the witness as an expert

Before an expert witness can give their opinion to the court, the judge will decide whether the witness is a qualified expert. If you are calling the expert, you have to establish three things:

1. That the expert will offer relevant information regarding the case, beyond ordinary knowledge;
2. That the expert is a qualified expert in their field; and
3. That the evidence they will provide cannot be excluded for any legal reason.

To show that your witness is a qualified expert you must first establish that they have the right training and experience to give an opinion on a particular subject. You do this when you first call the witness to give evidence in the trial. This is done by filing the expert’s resume with the court. Then you ask the expert about their education, qualifications and work experience in the area of their evidence.

If you do not agree that an expert called by the other party is qualified, you may cross-examine the expert about their qualifications, before the judge decides if they will be qualified as an expert.

If the other side calls an expert witness and the judge accepts that they are properly qualified to give their opinion as an expert, you still have the right to question the expert about the facts they relied on to form the opinion. You can still disagree with the expert’s analysis or conclusions. When you cross-examine the expert, you might focus on trying to show that the facts used by the expert in forming the opinion are different than the facts in the case, or that the opinion itself is wrong.

If the judge decides that the witness is not qualified as an expert, that witness may still give evidence about facts of which they have personal knowledge. But they may not give opinion evidence. For more information on questioning witnesses at trial, see Section 13.4: Witnesses

Using witnesses before trial

Witnesses are usually called to give their evidence at trial. However, you may need to provide this evidence to court before trial, such as at an interim application or in court documents. You can use witness evidence by getting written statements that they swear/affirm are true. This type of evidence is presented to the court in an affidavit. For more information on affidavits see Section 7.2: Affidavits on drafting affidavits. For now, just keep in mind that you can use written statements from a witness as document evidence.

To help you prepare fill out the Oral Evidence Worksheet.

Download the Worksheet

For each issue of your case write out the main points you want to show, what evidence you have to support it and any specific documents you will be presenting.

Issue 1:

_______________________________________________________________________________________________

Main point you want to establish: _______________________________________________________________________________________________

_______________________________________________________________________________________________

Oral Evidence by: ____________________________________________________________________________

_______________________________________________________________________________________________

Supporting Documents: _______________________________________________________________________________________________

_______________________________________________________________________________________________

Issue 2:

_______________________________________________________________________________________________

Main point you want to establish: _______________________________________________________________________________________________

_______________________________________________________________________________________________

Oral Evidence by: ____________________________________________________________________________

_______________________________________________________________________________________________

Supporting Documents: _______________________________________________________________________________________________

_______________________________________________________________________________________________

If the other party thinks that any evidence that you introduce is not material or relevant, they may object and ask the judge to exclude that evidence. Likewise, you too have the right to object to any evidence introduced by the other party if you think that it is irrelevant or immaterial. To object, simply stand up and let the judge know why you object. This is one of the few times that it is acceptable to interrupt another party when it is their turn to talk. However, it’s a technique that should not be used very often—and only when you truly think another party is trying to introduce improper evidence. Some TV shows make it look like good lawyers frequently object to evidence the other side is trying to introduce. In reality, objections are not very common.

You can also object if the other person wishes to introduce evidence that may be protected by privilege. Evidence may be privileged if it concerns legal advice from a lawyer you have consulted or hired to represent you for part of this lawsuit or without prejudice and unsuccessful settlement negotiations.

Sometimes, the identity of the person who made a document or made a statement may be in doubt. As a result, the evidence may be unreliable. Unreliable evidence may be excluded, so if that arises, you should raise an objection for the judge to consider.

For more information on making objections, see Section 13.4: Witnesses.

One type of evidence that is generally not allowed in most courts is “hearsay” evidence. Hearsay is information being offered for its truth, that a witness learned from someone else, but for which the witness does not have first-hand knowledge.

For example, if you want to prove Jane rode her bike yesterday:

• “Jane Smith told me she biked to work yesterday” is hearsay because you learned this from Jane, so it is second-hand knowledge – however, she could testify to this herself.
• “I saw Jane Smith arriving at work on her bike yesterday” is not hearsay because you observed this yourself and have first-hand knowledge.

Exceptions to hearsay:

Sometimes, hearsay can be introduced as evidence under rules of exception. The principle exception is that the evidence is both reliable and necessary. The following are some common exceptions:

• Necessity: Hearsay evidence may be necessary, such as if a witness has died and therefore cannot testify.
• Business Records: Another exception to the hearsay rule is business record evidence. Statements and records prepared in the usual course of business, by a bank, for example, are generally admissible as proof of the information set out in the statements or records, as long as:
  If you want to introduce hearsay evidence under one of the exceptions noted above, you must show that it comes from a reliable person or show that the person who made the statements had no reason to lie. Judges will carefully consider how reliable hearsay evidence is when they decide how much weight to put on that evidence in making their decision in the case.
  • the statements or records were made in the ordinary course of a witness’ duties;
  • the witness has personal knowledge of how the statements or records were made;
  • the witness had a duty to make the statements or records; and
  • the witness has no reason to misrepresent or lie about the contents of the statements or records.
• State of mind: Hearsay evidence may be introduced in order to demonstrate the speaker’s intentions or state of mind when they made the statement (i.e. because of what x said, I decided to do y), but not as proof of what is said. You can introduce evidence of statements made by the other person for this purpose. However, when you introduce such evidence, you cannot take the statement out of context and provide only the parts that support your case, and you cannot unfairly edit the other person’s statements. You must put the whole of the statement to the court.