When Evidence Is Not Required In A Family Law Suit?
- May 31, 2017
- Category: Family Law
Family law cases are quite tricky and you cannot determine your powers and rights without the help of a family lawyer. Even family lawyers Toronto need help sometimes.
Here are few situations in which you should not present evidence to the court.
- Children’s Evidence
- DO NOT meet with a child and have them swear an affidavit. Courts have taken into consideration affidavits sworn by children in some, limited circumstances. It appears that where an affidavit of a child has been considered or admitted by the court, the child is typically an older teenager. As an alternative to having the child swear an affidavit, particularly with younger children, consider having the OCL involved or asking for a judicial interview.
- DO NOT submit a letter from a child by attaching it to an affidavit. Instead, may consider including the information from the child in an affidavit of one of the parties. Although the Family Law Rules permit an affidavit to contain information that the affiant learned from someone else and believes to be true, the circumstances and context in which the child has made the statements will be crucial the its reliability and the weight given to it by the court.
- Waiver of Privilege
DO NOT involuntarily waive solicitor-client privilege through the content of pleadings or an affidavit. Here’s what experienced Toronto family lawyers suggest:
- The waiver may be either implied or explicit.
- By pleading that
- the terms of an agreement were not understood, that
- it was signed under duress, or
- there was not proper ILA,
The party puts at issue the nature and scope of the legal advice received and therefore waives solicitor-client privilege. It is the exception rather than the rule that solicitor-client privilege will be upheld when dealing with setting aside a Separation Agreement based on circumstances that existed at time of signing
- Electronic Evidence
DO NOT read emails produced by your client between the other party and their lawyer. When your client brings you emails between the other party and their lawyer, do not read them and do not attach them to an affidavit. If you have taken a computer, or copied documents from the other party’s computer, be careful about how documents are treated.
- Affidavit Evidence
According to the experienced Toronto family lawyer:
- DO NOT rely on Affidavits that contain hearsay evidence inconsistent with the Rules. Do not rely on sworn affidavits that contain information beyond the personal knowledge of the deponent or that rely on hearsay evidence in a manner not consistent with the Family Law Rules and the Rules of Civil Procedure.
- DO NOT attach letters to affidavit: Instead, where possible, you should have the author of the letter swear an affidavit containing the information you want to include in evidence before the court.
- DO NOT use inflammatory language
- DO NOT forget to include affidavit evidence supporting request for disclosure: If it is not self-evident from the disclosure request letter itself, on a motion for production of disclosure, it is advisable to have the expert swear an affidavit explaining why the information/disclosure requested is relevant.
- DO NOT attach expert report to affidavit of your client, law clerk etc: Instead, you should have your expert swear an affidavit which attaches as an exhibit their own report.
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