Admissible evidence cannot just be ‘bric-a-brac from the internet’

By Paul Russell, LegalMatters Staff • A recent decision by the Ontario Court of Appeal as well as two others by Ontario Divisional Courts confirm that only admissible evidence should sway judges in family law cases, not “questionable bric-a-brac from the internet,” says Toronto family lawyer Gene C. Colman.

“It does not matter if the information is thought-provoking. If it is hearsay evidence, it has to fall in the list of exceptions of the Evidence Act,” says Colman, principal of the Gene C. Colman Family Law Centre.

He explains that hearsay evidence is any statement, either written or oral, that is made out of court but is presented to prove a point.

“It is presumptively inadmissible because it cannot be tested through cross-examination,” explains Colman.

The exceptions found in s.25 of the Evidence Act are: “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 with the Queen’s dominions, shall be admitted in evidence to prove the contents thereof.”

Cases dealt with COVID

Colman says the three cases where judges reinforced the rules about relying on admissible evidence involved COVID-19.

The appeal court heard J.N. v. C.G., which involved a separated couple and their three children. The two youngest lived with the mother and she and the children opposed them receiving the COVID vaccine. Relying on advice from the government, the father felt they needed to be vaccinated so he brought a motion asking the court to grant him the necessary decision-making authority.

Superior Court Justice Alex Pazaratz dismissed his motion in the 2022 case, finding it was not in the children’s best interests.

“Pro-vaccine parents have consistently (and effectively) attempted to frame the issue as a contest between reputable government experts versus a lunatic fringe consisting of conspiracy theorists, and socially reprehensible extremists,” Pazaratz wrote in his decision. “This was absolutely the wrong case to attempt that strategy. 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.”

The appellate court flatly refused that argument, says Colman.

Laws of evidence need to be followed

“The motion judge erred in failing to conduct any meaningful review of the appellant’s authorities, or the laws of evidence, in favour of the respondent’s questionable and unreliable internet printouts with no independent indicia of reliability or expertise,” the appeal judgment reads. “This was a palpable and overriding error.”

It added, “The information relied upon by the respondent 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.”

“Before COVID, there were rules in family law and they were adhered to,” says Colman. “There is an Evidence Act, both provincially and federally. Then there’s common law.

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“It should not have mattered to Justice Pazaratz which documents were more ‘thought-provoking,’” he adds. “The evidence has to be admissible. You cannot just take information from the internet and present that in court as evidence.”

Colman also questioned why the judge felt the need to point out that the government has made mistakes in the past. In his judgment, under the heading, “Why should we be so reluctant to take judicial notice that the government is always right?” he listed a dozen historical missteps by the federal government, including the internment of Japanese Canadians in the Second World War and the residential school system.

Examples were ‘false equivalency’

“I agree they are all stains on our history. But the court of appeal called these examples ‘false equivalency,’” says Colman. “Just because the government has done terrible things in the past doesn’t make s.25 of the Evidence Act inapplicable.”

The nature of evidence at interim motions is an issue that has long plagued Ontario courts, he says.

“While hearsay evidence is allowed in some situations, no one should hang their hat on that save and except where that evidence comes under the rubric of a recognized exception to the hearsay rule,” Colman says. “And we must pay particular attention to ensure that whatever evidence is included in affidavits is admissible, for starters.”

He says his firm was involved in what he thinks is the second family law case involving COVID. According to court documents, the father believed his daughter should continue online learning at the start of Grade One in September 2020 while the mother argued that the child should return to in-person learning.

“The judge decided that government edicts as to the safety of its students in classrooms were to be followed, so the child should return to school,” said Colman.

Superior Court of Quebec decision cited

The judgment cited a Superior Court of Quebec decision that noted it is not for the courts, “but rather for the competent government authorities, to assess the potential risks of contamination of the population during the pandemic, and to take the necessary measures to limit the spread of the virus [if] the government decides to permit primary education to resume, the court need not question that decision.”

Colman says the same approach was embraced in the second Divisional Court decision. It also referenced the Quebec court decision when it noted: “The Ontario government is in a better position than the courts to assess and address school attendance risks. The decision to re-open the schools was made with the benefit of medical expert advisers and in consultation with Ontario school boards. The teachers’ unions and others have provided their input as well as their concerns.”

These three decisions should put to rest any debate about students having to follow government edicts about going back to school during COVID, Colman says

“If you are going to have hearsay evidence say otherwise, have it come under section 25, which means it has to be a government edict or regulation. Everything else should be ignored,” he says.