Announcement

Collapse
No announcement yet.

What is not allowed as evidence?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • What is not allowed as evidence?

    Hello,

    I was in court and a lawyer complained about a piece of evidence that was submitted. The evidence was a lawyer letter.
    I was also told that letters involving negotiation were not permissible either.

    Can someone explain to me what is and is not permissible in regards to lawyer letters?

    Is a redacted lawyer letter permissible?

    thank you.

  • #2
    Long answer: Sopinka on the Law of Evidence is the ‘go to’ resource for evidence issues. It is 1,704 pages in its current version and can be yours for $435.00 (https://store.lexisnexis.ca/en/categ...-00749/details).

    I say this because no one will be able to give a comprehensive answer to your question.

    Letters and discussions dealing with settlement are usually settlement privileged. Meaning you can’t use them at motions or in trials. They are commonly referred to as ‘without prejudice’ communications.

    Redacting MIGHT allow you to rely on it, depending what you’re redacting. For example, it the letter contains a narrative and an offer, and you redact the offer, it might be possible to rely on the narrative. Depends on what exactly is being said.

    Same answer to lawyers letters, depends on what is being said and who wrote it.
    Last edited by Kinso; 10-02-2020, 01:34 PM.

    Comment


    • #3
      Originally posted by Kinso View Post
      Long answer: Sopinka on the Law of Evidence is the ‘go to’ resource for evidence issues. It is 1,704 pages in its current version and can be yours for $435.00 (https://store.lexisnexis.ca/en/categ...-00749/details).

      I say this because no one will be able to give a comprehensive answer to your question.

      Letters and discussions dealing with settlement are usually settlement privileged. Meaning you can’t use them at motions or in trials. They are commonly referred to as ‘without prejudice’ communications.

      Redacting MIGHT allow you to rely on it, depending what you’re redacting. For example, it the letter contains a narrative and an offer, and you redact the offer, it might be possible to rely on the narrative. Depends on what exactly is being said.

      Same answer to lawyers letters, depends on what is being said and who wrote it.
      Excellent response!

      I will add some additional things that high-conflict parents do that is "useless evidence":

      1. Evidence that the other parent had an affair. Useless.

      2. Any time you write "I believe" in an affidavit. That is a signal to the judge that you have no evidence and its a "belief".

      3. Audio / video recordings of a child or the other parent.

      4. A letter from your friend saying the other parent is awful. In fact most Letters from people are USELESS. Get an affidavit. (Even a letter from your doctor is not "evidence".)

      Evidence and relevance, as Kisno pointed out, is probably the hardest concept for even a lawyer to truly understand. If you look at the concept of "relevance" and "evidence" it is very complex. This is where a law degree and YEARS of study and experience is hard to make up as a unrepresented litigant. I have only met one unrepresented litigant ever that truly understood this at the same level (and even better!) as a lawyer. Very famous previous poster on this site. Not hard to find their stuff. Most cited case law in Family Law of the past 5 years I would say.

      The other issue that unrepresented litigants have is remaining "cogent" with their "relevant evidence".

      Comment


      • #4
        BTW: this is what happened to the lawyer letter. The judge said they did not see an issue with the counsels "with prejudice" letter being submitted as evidence and they accepted it.

        Thank you so much. It changes how I am reading affidavits now and what I would put in them.


        Please shoot a big hole in my affidavit statements:


        1. I read this letter (exhibit A) from FRO that stated the payee denied receiving funds.
        2. I have attached my bank records showing that I did pay those funds (Exhibit B)

        3. The payee was untruthful about funds received and am to be reimbursed.
        Last edited by pinkHouses; 10-02-2020, 08:53 PM.

        Comment


        • #5
          Originally posted by pinkHouses View Post
          BTW: this is what happened to the lawyer letter. The judge said they did not see an issue with the counsels "with prejudice" letter being submitted as evidence and they accepted it.
          I think you mean "WITHOUT PREJUDICE". "WITH PREJUDICE" usually means I am going to stick this letter to an affidavit on our next motion. In fact, any letter that isn't marked "WITHOUT PREJUDICE" is technically "WITH PREJUDICE" and fair game for entering into the record.


          Originally posted by pinkHouses View Post
          Thank you so much. It changes how I am reading affidavits now and what I would put in them.

          Please shoot a big hole in my affidavit statements:

          1. I read this letter (exhibit A) from FRO that stated the payee denied receiving funds.

          2. I have attached my bank records showing that I did pay those funds (Exhibit B)

          3. The payee was untruthful about funds received and am to be reimbursed.
          1. In the letter dated day, month, year sent via (email, fax, post, UPS, blah blah blah) from Mr. (or Ms.) Lawyer Person it explicitly states in paragraph x:

          "You really smell like dog buns."

          Please find a photostatic copy of this letter attached to this, my affidavit, and marked as Exhibit (or Schedule) "A or B or C or AA or ZZ or AAA if it gets that insane".

          Generally you should have 1. for each point of evidence... I don't recommend using separate paragraphs that are labeled different numbers for the evidence and then the next for the attachment.

          Kisno may have better advice. I am very "British Old School" style in how I write that stuff.

          You should have a lawyer at min on a limit retainer to help you with stuff like this. Judges really can get cranky if process is not followed. Nothing better than hearing Justice Mossip correct grammar and structure in a court room!

          Comment


          • #6
            Originally posted by Tayken View Post
            I think you mean "WITHOUT PREJUDICE". "WITH PREJUDICE" usually means I am going to stick this letter to an affidavit on our next motion. In fact, any letter that isn't marked "WITHOUT PREJUDICE" is technically "WITH PREJUDICE" and fair game for entering into the record.
            I think given what the OP has posted- it probably is "WITH PREJUDICE" - because the judge said they see no issue with it being entered into evidence because it was accepted. It's a heavy handed tactic- but can be extremely effective at signaling to the other side that they're being idiots and get ready to rumble in court (assuming the 'with prejudice' letter isn't spouting lies).

            Comment


            • #7
              Originally posted by Tayken View Post
              Excellent response!



              I will add some additional things that high-conflict parents do that is "useless evidence":



              1. Evidence that the other parent had an affair. Useless.



              2. Any time you write "I believe" in an affidavit. That is a signal to the judge that you have no evidence and its a "belief".



              3. Audio / video recordings of a child or the other parent.



              4. A letter from your friend saying the other parent is awful. In fact most Letters from people are USELESS. Get an affidavit. (Even a letter from your doctor is not "evidence".)



              Evidence and relevance, as Kisno pointed out, is probably the hardest concept for even a lawyer to truly understand. If you look at the concept of "relevance" and "evidence" it is very complex. This is where a law degree and YEARS of study and experience is hard to make up as a unrepresented litigant. I have only met one unrepresented litigant ever that truly understood this at the same level (and even better!) as a lawyer. Very famous previous poster on this site. Not hard to find their stuff. Most cited case law in Family Law of the past 5 years I would say.



              The other issue that unrepresented litigants have is remaining "cogent" with their "relevant evidence".
              Interesting note about audios/videos recording. Why are they not being accepted as evidence? My ex has loads of video and audio they intends to use. How do I raise an objection to this evidence? If they insist, is there a procedure that will require the audios/videos to to authenticated if they were to be allowed as evidence

              Comment


              • #8
                It also can’t be stressed enough that what you think is evidence may not be what the judge wants as evidence. For the original post, if the ex is claiming they didnt receive support payments, emails saying they got it are not evidence, bank statements, cancelled cheques, etransfers and receipts are evidence.

                Not to mention you don’t want to overkill on evidence. Use your best proof.

                And when it comes to statements about your ex…a friend saying your ex is dangerous is worthless. A police report, criminal charge, CAS report or finding of guilty are all evidence.

                If you are going to self rep, do your research, review cases, look at other filings if possible and/or get a lawyer to review your stuff.

                Comment


                • #9
                  Originally posted by rockscan View Post
                  It also can’t be stressed enough that what you think is evidence may not be what the judge wants as evidence. For the original post, if the ex is claiming they didnt receive support payments, emails saying they got it are not evidence, bank statements, cancelled cheques, etransfers and receipts are evidence.

                  Not to mention you don’t want to overkill on evidence. Use your best proof.

                  And when it comes to statements about your ex…a friend saying your ex is dangerous is worthless. A police report, criminal charge, CAS report or finding of guilty are all evidence.

                  If you are going to self rep, do your research, review cases, look at other filings if possible and/or get a lawyer to review your stuff.
                  good stuff Rockscan and Brampton33. What can you then use to proof payment of support to an ex if you can't use an interac etransfer email confirming that they accepted the money?

                  Comment


                  • #10
                    Originally posted by 416excouple View Post
                    good stuff Rockscan and Brampton33. What can you then use to proof payment of support to an ex if you can't use an interac etransfer email confirming that they accepted the money?

                    You can use that but I believe it should also show up on your bank statements too.

                    Comment


                    • #11
                      Receipts of e transfers would be used as opposed to an Emil from the other party saying they got it.

                      Just as with written cheques, e transfers should indicate in the memo line what it is for ie: child support payment for March 1,2022.

                      Comment


                      • #12
                        Originally posted by blinkandimgone View Post
                        Receipts of e transfers would be used as opposed to an Emil from the other party saying they got it.

                        Just as with written cheques, e transfers should indicate in the memo line what it is for ie: child support payment for March 1,2022.

                        Some banks send a follow up email advising it was accepted. My bank sends me an email saying rockscan’s friend accepted your etransfer and includes the date and time. The bank statement would be first but the email from the bank should be included too.

                        Comment

                        Our Divorce Forums
                        Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                        Working...
                        X