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Hearsay Evidence Within Family Law Proceedings

There is significant variation across Canada in how children's evidence is received in family law proceedings. The methods for receiving the evidence of children in family proceedings, including hearsay from parents, reports from mental health professionals, judicial interviews with children testimony in court, views of the child reports and lawyers for children.

Hearsay is defined in a legal forum as an out-of-court statement which is being offered in court for the truth of what was asserted. In 1990, the Supreme Court of Canada released its judgement in R. v. Khan, 1990 77 (SCC). Prior to the decision, all hearsay evidence was inadmissible unless it fell within one of a number of exceptions. Khan was a landmark ruling which opened the door to a more flexible approach, based on the underlying principles behind both the hearsay rule and its exceptions, necessity and reliability. The traditional approach to hearsay is further altered by statute.

Section 202 of the Family Law Act, states as follows:

Court may decide how child's evidence is received. In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following:

a. admit hearsay evidence it considers reliable of a child who is absent;

b. give any other direction that it considers appropriate concerning the receipt of a child's evidence

In addition to these further variants, the courts have adopted a test for assessing the reliability of hearsay evidence in children. In L.M. v. K.M., 2022 BCSC 689, the court uses these factors to determine the reliability of hearsay evidence. Those factors include: “timing of the statement; demeanor of the child; personality of the child; intelligence and understanding of the child; absence of motive of child to fabricate; absence of motive or bias of the person who reports the child's statement; spontaneity; statement in response to non-leading questions; absence of suggestion, manipulation, coaching, undue influence or improper influence; corroboration by real evidence; consistency over time; and statement not equally consistent with another hypothesis or alternative explanation”

It is important for parents, public services and judicial who are making decisions about the care of children to hear the voices of those who are most affected - the children involved. There are many different forms of admitting evidence of children within family court, each with their own pros and cons but it is always in the best interest for a child's voice to be heard, arguably they have a legal right to have their voices heard, whichever method that may be.

The lawyers, assessors, public services and Judges who are responsible for ensuring children have a voice and they are heard, require education in child development and training in interviewing children. Professionals need education and training about how to understand children and ensure that their evidence is heard in the child's best interest and with minimal trauma.

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