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-   -   Hearsay Rules (http://www.ottawadivorce.com/forum/f3/hearsay-rules-660/)

Grace 03-07-2006 01:30 AM

Hearsay Rules
 
Does anyone know of the "Hearsay Rules" and how they are applied in Family Court. What can be said or not said in court based on this rule.

Thanks in advance for your replies,
Grace

sasha1 03-08-2006 04:18 PM

I'm afraid I don't have a clue, but I hope someone sees and answers your question soon; I'm curious about this, myself.

Jeff 03-08-2006 07:37 PM

I'll *try* to write something on this by the end of the week...

logicalvelocity 03-08-2006 08:14 PM

Grace,

I am not sure if you are referring to heresay rules when it comes to affidavit writing, but I did come across this

How to prepare an affidavit...

An affidavit is a written statement made on oath about facts which are personally known to the person making the affidavit. Because an affidavit is sworn to be true or affirmed to be true, it is evidence of the facts that it sets out, just as if the facts were given as oral evidence at a trial. Affidavits are formal legal documents.


Formal Requirements

The contents of an affidavit are set out in numbered paragraphs. It is a good idea to state who you are and how you have personal knowledge of the facts that you are describing in the first paragraph, and to say why you are swearing the affidavit in the second paragraph. For example, in the first paragraph you must say something like:

I am the Plaintiff in this matter, and as such have personal knowledge of the facts hereinafter deposed to.

In the second paragraph you might say:

I make this my affidavit in support of my application by Notice of Motion, dated 1 January 2003.

If you are having a friend or relative make the affidavit, the first paragraph might read:

I am the sister of the Plaintiff in this matter, and as such have personal knowledge of the facts hereinafter deposed to.

Every page of your affidavit must be numbered, including each page of any exhibits you might have attached.

You must put, in the upper-right hand corner of the first page, the name of the person swearing the affidavit, the sequential number of the affidavit of the affidavits sworn by that person so far in the action, and the date the affidavit was sworn on. For example, if you are Jane Alice Doe, and this is your third affidavit, you would put this:

J.A. Doe, #3
1 February 2003

Once your affidavit is done, you must have it "notarized." Affidavits can be notarized by lawyers, notaries public and certain court clerks, or anyone else who is authorized to take oaths. The lawyer or notary public will ask you whether you understand the contents of your affidavit and then ask you to swear an oath or affirm that the contents are true. If you say yes, the lawyer or notary will ask you sign your name to the affidavit and will watch as you sign the document. The lawyer or notary will then sign his or her name and fill in certain information about where the affidavit was notarized and the date and so forth. Note that the lawyer or notary will ask you to produce government-issued photo identification, like a driver's licence, to prove that you are who you say you are.

After you've had your affidavit notarized, make at least four copies. The original is filed in court and another copy or two, depending on the circumstances, must be sent to the other side. Make sure you keep an extra copy for yourself!

Telling Your Story

Following the introductory paragraph, tell your story in an orderly manner. Remember to keep things as simple as possible and avoid irrelevant information; the easiest way to do this is to ask yourself if a stranger would understand what you've written. If you don't think a stranger would understand what you're talking about, you should probably rewrite your affidavit!

Your goal is also to explain things in an easy-to-understand way for the judge. The judge will not know who "Phil" is unless you've introduced Phil somewhere else in your affidavit. Nor will the judge understand what "the other car" means, unless you've already described which cars you have and who owns them. You must not assume that the judge knows everything about you. The judge won't. Again, ask yourself if a stranger would understand your story.

In order to make things as simple as possible, the author usually breaks his affidavits down into sections following the initial introductory paragraph:

Application:

State what you're asking the court for. If you're responding to an application, tell the court your position on each of the claims the applicant is making.

Background:

Describe who you are, who the other side is, when your relationship started and stopped, who your children are and how old they are, when litigation started, and any significant orders that have been made since litigation started.

Circumstances:

Describe the immediate circumstances that triggered the application to court and anything significant that happened since. This should be the part where you provide the facts in favour of your application or in opposition to the applicant's application.

Summary:

If necessary summarize your position and perhaps describe the order that you want the court to make.

Affidavits drafted by the author often look something like this:

I am the Plaintiff in this matter and as such have personal knowledge of the facts hereinafter deposed to.

Application at Bar

In my application, by Notice of Motion dated 1 January 2003, I seek an Order that the Defendant be restrained from removing the children, Sally Ann Doe, born on 1 January 1998, and John Fred Doe, born on 1 January 2000, from ANYTOWN, ANYWHERE, and an Order that the Defendant pay support to me for the benefit of the children.
In the Defendant's application, by Notice of Motion dated 1 January 2003, he seeks an Order that I pay spousal support to him. I oppose the Defendant's application as he is employed full-time and is self-sufficient.

Background

I am 32 years old and am presently employed as an account by the firm Smith Smith and Smith. I earn approximately $42,000 per year.

The Defendant is 34 years old and works full-time as a bricklayer with ABC Contracting. He earns about $38,000 per year.

The Defendant and I met in the summer of 1996, and moved in together on 1 January 1997. We lived in a common-law relationship until 1 Janary 2002, when the Defendant left our home.

The Defendant and I have two children, Sally Ann Doe, who is 6 years old and in Grade 2 at Foggy Bottom Elementary, and John Fred Doe, who is 4 years old and in pre-school at ABC Community Centre.

I started this action on 1 July 2002, when I filed my Writ of Summons and Statement of Claim. I essentially seek an Order that I have sole custody of the children, that we share joint guardianship of the children and that the Defendant have access to the children every other weekend. I also seek an Order that the Defendant pay child support to me for the benefit of the children.

On 1 September 2004, Mr. Justice Smith made an Order that the Defendant and I have interim joint custody and interim joint guardianship of the children. The honorable Justice did not make an order for access or child support, but the Defendant has been seeing the children on weekends and has been paying $200 per month to me as child support.

...and so on.

Circumstances of Application

On 25 December 2002, the Defendant had Sally and John from noon until 7:00pm. We had agreed that he would return the children to my home at that time.

The Defendant did not return the children as we agreed. I phoned him to find out what was wrong at 8:00pm. He told me that he was keeping the children until 27 December 2002 because his family wanted to see them on Boxing Day. He also said that he the children would be moving to Calgary, Alberta.

The Defendant has family in ANYTOWN. I am afraid that he intends to remove the children from ANYTOWN, where they have spent all of their lives and where they have family and friends.

...and so on.

Summary

As a result of the Defendant's conduct I believe that the Defendant may decide to take the children to ANYTOWN and seek an Order that the Defendant be restrained from removing our children from ANYTOWN without my express permission or the further Order of this Honourable Court.

Remember to tell your story in the first person. It is you who is telling your story, and you are "me," "myself" or "I," not "the Plaintiff" or "the Defendant."

Continued on next....

logicalvelocity 03-08-2006 08:14 PM

Continued from previous

Rules about Content

Only certain kinds of information are permitted in an affidavit. If your affidavit is written for use at a trial, you cannot describe things you believe are true or have heard from someone else. You can only set out information that you have actual, personal knowledge of. If you are writing your affidavit for the purposes of an interim application, however, you may include both things you believe to be true as well as hearsay.

Hearsay

"Hearsay" means anything you have no personal knowledge of but have learned from someone else; it also includes repeating someone else's statements in your own affidavit. It is hearsay, for example, to say "Sally told me that she went to the park at noon on Saturday." It is not hearsay to say "I saw Sally in the park at noon on Saturday."

Hearsay is permitted in affidavits used for interim applications. However "double" hearsay is not, nor is "anonymous" hearsay.


Double hearsay is saying something like "Frida told me that Sally said she was in the park at noon on Saturday." In other words, double hearsay is stating as a fact what someone told someone else.

Anonymous hearsay is saying what someone told you but without identifying the person who told you, like "Someone told me that Sally was in the park at noon on Saturday," or "I have been advised that Sally was in the park at noon on Saturday, but I cannot identify the person who told me that she was in the park."


Opinions

The other thing which is generally not permitted in an affidavit is "opinion evidence." Only people with special, recognized skills, like doctors or engineers or psychologists are allowed to write about their opinions in affidavits. Again, some opinion evidence is permitted in affidavits used for interim applications, however it is never permitted in affidavits prepared for trial.

The easy way to spot opinion evidence is by sentences that start with "I think..." or "I believe that..." For example, stating "I believe that Sally is not a good mother because she spends too much time in the park" is really your opinion about Sally's parenting skills; it is not a statement of fact and is not allowed in your affidavit.

Expressions of Emotion

A lot of people want to put everything into their affidavits, including how they feel about things or how they reacted to something. Don't do this. The court won't pay much attention to it, and you risk the court having a bad impression of you rather than your ex. Good lawyers will carefully winnow out statements like "I was shocked and appalled that Bob would actually do such a thing," and you should get rid of that sort of thing as well.

The court does not care how something made you feel; the court is interested in facts. Overblown and hysterical statements will undermine the credibility the court is prepared to extend to you. Statements like "I could see the anger in her eyes as she came at me," or "I couldn't believe what a rotten person Sally was," will not go over well in court.

"Never" and "Always"

Avoid using the words "never" and "always," or any other absolute statement, as it is rarely the case that something always happened or never happened. Saying "Bob never helped with the children" is an invitation to the court to discount what you're saying. Even if you did 99% of the work with the children, Bob is certain to have done something with them, and that means that "never" and "always" aren't true.

Just as over-the-top statements of emotion will undermine your credibility, so will using statements that are as absolute as "always" and "never." Instead of words like this, just say "I did virtually all of..." or "Sally rarely helped with ..."

Exhibits

Exhibits are documents that you attach to your affidavit, usually to support some point you're making in your affidavit. If, for example, you say that your income is $42,000 per year, you might want to attach your most recent T4 slip or your most recent income tax return to show that your income is in fact $42,000 per year.

Exhibits can be almost anything: a receipt, a printout of your child's school's website, a letter, a doctor's note, a company search result, report cards, a speeding ticket, a photograph, an appraisal, a bank statement... pretty much anything. If something can be reduced to paper, it can be an exhibit.

When you attach an exhibit, you have to introduce it in your affidavit. You can't just attach reams of documents to the back, you have to explain what the document is and state that the document you are attaching is a true copy of the original. Each exhibit is identified sequentially by a letter, "A", "B", "C" and so forth. For example:

I have a lovely home on two acres of land. There are three bedrooms, a sauna and an outdoor swimming pool. Attached to this my Affidavit as EXHIBIT "G" are true copies of photographs of my home.
My home is worth about $350,000. Attached to this my Affidavit as EXHIBIT "H" is a true copy of the 2003 BC Assessment for my home.
Each separate exhibit is marked as an exhibit and shows which exhibit it is. Lawyers and notaries public will have a stamp that they use to give the basic information. The stamp says something like this:

This is Exhibit "___" in the Affidavit of ___________________ , sworn before me at ___________________ , Ontario, this ___ day of ___________ , 20___ .
with a space for the lawyer or notary's signature, and the phrase "A commissioner for the taking of Affidavits for the Province of Ontario." Filled out, the stamp will read like this:

This is Exhibit "D" in the Affidavit of Jane Doe, sworn before me at ANYTOWN, Ontario, this 20th day of March, 2003.

The important thing about exhibits is that they are hearsay. Just because you've attached something as an exhibit doesn't make the statements made in the exhibit true. While objective information like a bank statement or a receipt will be taken as true, subjective information, like the contents of a letter from your mother, brother, friend or co-worker, won't be automatically accepted by the court.

This is important to understand, because lots of people want to attach testimonials and other sorts of information to their affidavits to make them look as good as possible, or to make their ex look as bad as possible. "Sally is the best mother I have ever seen, she obviously treasures her children and they mean the world to her," or "Bob is a terrible parent, who used to throw rocks at the children when they were infants to see if they'd flinch." What will the court get out of such obviously biased information? Not a lot.

The letter from your mother is hearsay, just as if you'd said what your mother told you in your affidavit. The court will accept as true the fact that your mother wrote the letter, but it won't necessarily accept what your mother says in the letter as true. If what your mom has to say is so important, get her to execute an affidavit an affidavit of her own. That is something that the court will pay attention to.

Summary

Be calm, be cool, be collected. You should tell your story in a logical, orderly manner such that a judge who doesn't know you from a hole in the ground will understand what the heck you're talking about and what you want. Avoid inappropriate expressions of emotion and stick to those facts that you have personal knowledge of when you can. You want to come across as a sane, reasoning human being, not a hysterical jumble of raw emotion.

If you have any documents that support the statements you're making, attach them to your affidavit as exhibits. Use documents that are neutral and unbiased, like a bank statement or an appraiser's report, but avoid inflammatory and subjective documents like letters from friends and relatives.

Above all, when you're done, ask yourself this: would a complete stranger know what I'm talking about? If you can't answer that question, give your affidavit to a complete stranger, your next-door neighbour for example, and find out!

LV

logicalvelocity 03-08-2006 08:40 PM

Grace,

The other thing I would add to this is if your recalling something from memory
ie: incident, event or a statement made by the opposing party etc; it is best to word it

"something to the effect of" this leaves the window open for error if it did not happen or they did not say the exact words you have written in an affidavit. What you are describing is the effects of same after the fact.

No one has a perfect memory and one's recollection can change over time

A person's memory can easily be broken down on cross examination. An opposing lawyer can simply ask a person driver's license number or sin number to show how bad their memory really is. These are every day documents that a person has. If one can't remember Their own personal document number, How is one going to remember every detail of an incident. A court may not allow this type of questioning as it is irrelevant, but a lawyer could easily show it is relevant on one's memory recall skills.







LV

Grace 03-08-2006 09:12 PM

WOW thanks LV, that was an amazing answer. I'm trying to prepare myself for an upcoming trial. Apparently you can't say anything on the witness stand that is "hearsay".

logicalvelocity 03-08-2006 10:42 PM

Grace,

you can, it is up to the opposing party to object. Your answer or response may still be allowed.

Jeff 03-08-2006 11:18 PM

Wow, thanks logicalvelocity!!!

sasha1 03-09-2006 07:29 PM

:) As always, LV, you ROCK! Lemme hear a "H*LL, Yeah!"!:D


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