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  • #16
    Originally posted by WorkingDAD View Post
    you can not to put it in trial record. Before to go to all that hassle I would think really hard why on earth you need to add all email?
    The problem with trial records and document briefs is that Justices are willy nilly on the Rules at times. For example, it is the Applicant's responsibility to put the trial record together yet, there are matters that proceed with there being two "trial records". One for the Applicant and one for the Respondent.

    The general point is that you can't just bring them into the court room without first disclosing them.

    Here is some very recent case law (read the reflex on this case law too) on "emails".

    Fielding v. Fielding, 2013 ONSC 1953 (CanLII)
    Date: 2013-04-03
    Docket: FS-12-00375231
    URL: CanLII - 2013 ONSC 1953 (CanLII)
    Citation: Fielding v. Fielding, 2013 ONSC 1953 (CanLII)

    Originally posted by WorkingDAD View Post
    you have to put them in document brief and try to admit it to the evidence... would be helpful to run request to admit and ask other party to admit authenticity.
    Basically, what WD is stating is that you can't ambush the other party with the emails without admitting them into evidence prior to using them at trial. The courts don't like "trial by ambush". They have to be admitted some how to confirm authenticity. Be it in the Trial Record or a Document Brief it really is immaterial what "way" they are presented. The material fact is that they have to be presented to the other prior to trying to leverage them as "evidence".

    You can't blind side the other party last minute or present them late. That is know as "sharp practice" and/or "trial by ambush". Justices don't like when litigants do this. They especially don't like it when lawyers do late service and then admit to it. The really don't like it when they admit to this as a "trusim" (strategy) in how they conduct their business before the Superior Court.

    Key point to focus on is why would you present so much email. Your better to pick out 10-15 key ones that demonstrate a pattern, request them to be admitted and work from there. No justice (see above case law) is going to sit through all the emails.

    Good Luck!
    Tayken

    Comment


    • #17
      You guys have much more experience with this than I do, but here is my thought:

      The email must be related to an issue. Determine the issue. For example let's say the other party is not adhering to the custody schedule.

      Your argument in application/response is that the schedule needs to be reaffirmed and/or changed to guarantee compliance. For example pick up from school on Friday instead of the other party's home on Saturday morning....

      You support this argument with an affidavit stating that other party has refused access on numerous occasions. You state the dates and note that support for this is attached. You quote relevant passages in the affidavit and note the location according to a short table of contents at the beginning of the printout.

      Attached to the affidavit are the printouts of the emails which show the other party refusing or changing access times for nebulous reasons on the stated dates.

      So, in this example, we are not just trying to add a complilation of emails to the trial record mid-way through the process. We are using the emails as factual support for an affidavit relating to one of our main arguments. There is context and relevance right from the start.

      Comment


      • #18
        This is useful information, as I too will be relying on a lot of email "evidence", to remedy some issues (ex. interference to parenting schedule, etc).

        Comment


        • #19
          Originally posted by Mess View Post
          You guys have much more experience with this than I do, but here is my thought:

          The email must be related to an issue. Determine the issue. For example let's say the other party is not adhering to the custody schedule.
          Exactly. What is the "relevance" to the issue of the email? The judge will want to hear the reason why the "evidence" is relevant to the matter being argued. If it is not relevant, expect the judge to wave their hand and tell you to move on... They do this to lawyers all the time. (Well, the awful ones who are generally nothing but negative advocate lawyers who are there just to "tattle on you" - "tattle to the judge".)

          It is like this sort of: There is "tattling" and there is "telling". You "tell" when someone is in danger, going to hurt themselves or is hurting others and you are looking for help to solve the problem. You tattle when you want to get someone in trouble.

          Guerrilla Parenting: Tattling vs. Telling - samluce.com

          To round out what Mess identifies quite correctly is that you want to use the evidence to support (telling) your evidence. If you are just tattling a judge can tell the difference.

          If you follow Mess' pattern on how to properly use email as evidence you should be fine. But, remember you don't need to have every email there to tell the evidence. You can basically say that there are 99 emails like this, this is a sample of 4 of the 99 and more are available in support of the argument.

          Evidence is used to support an argument. Often times it can be the argument but, you still have to make the argument.

          Also, remember, what you may find "offensive" / "verbally abusive" / "abusive" OP and what a court may find may be quite different. Always remember, that although you may be personally insulted or upset by what is written, the justice on bench has read much worse and is weighing the situation before them not just in "your" context but, the whole system of Family Law.

          If you are going to trial OP. I highly recommend you do some litigation proofing of your evidence. By this I mean, have your lawyer retain some third parties to provide an opinion other than yours and your lawyers' on the evidence. Some mediator/arbitrators do this kind of work. Parental Coordinators often do it too.

          Good Luck!
          Tayken

          Comment

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