Rules Must Be Followed To Allow Text Messages To Be Entered As Evidence

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For people who aren’t involved in family law on a daily basis, it’s natural to be unsure as to how evidence is to be admitted in court. Technology allows for very informal communication amongst people, but such informalities don’t fit with the requirements of evidence when it comes to trials. Statements made by people need to be presented as evidence, and in most cases, the person who is alleged to have made a statement is needed to confirm what they said or meant. This doesn’t apply just to conversations, either. It is also a requirement for evidence such as text messages. When such material is presented without such testimony, it is known as hearsay. How these requirements can impact actual events is well demonstrated in a recent decision from the Ontario Superior Court of Justice.

Mother alleges father is drinking

The parties involved in the dispute are a mother and father who are separated. An interim order issued in February 2020 stated that the child would stay primarily with the father, but the mother would have parenting time three afternoons a week, and throughout the day every other Saturday.

About a year after that order was issued, an incident arose when the mother alleged that the father came to pick the child up from her house after he had been drinking and was intoxicated. The mother said she allowed the father to take the child only because she was afraid of confrontation.

After the father left, the mother called the police to alert them about her concerns. She said she received information from the police confirming her suspicions about the father’s intoxication.

The father said he hadn’t been drinking at all, and he filed an affidavit from his mother, who he lives with, stating he had not been drinking at all that day and was sober when he left to pick up his daughter. He also said that it was clear to the police when they visited him that he was not drinking.

The following day the child was returned to the mother’s care, after which she elected not to return her to the father. This resulted in the father filing a motion seeking for the status quo to be returned to, while the mother asked for the child to be primarily in her care with the father allowed only supervised visits.

Mother seeks to enter text messages into evidence

During the hearing, the mother attempted to admit text messages she said were from the mother of one of the father’s other children. She said the text messages showed the father was in fact drinking on the day in question.

The court declined to admit the evidence, though, warning that electronic communications, while easy to bring up in court, amount to inadmissible hearsay evidence when the person alleged to have sent it has not testified as to its truth. The court wrote, “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.”

With the mother’s evidence not admitted, the court ruled that the status quo should be put back into place, while adding that the mother’s motion to have primary parenting time with the child could be heard at a later date.

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