A. Credibility

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 538-539

Page 538

Several criteria should be considered by a court in assessing credibility, including the reasonableness of the evidence; contradictions in the evidence (internal consistency); whether or not the witness’ character has been impugned; personality and demeanour; corroboration (external consistency); self interest; powers of observation, and recollection; and capacity of expression.¹A motions judge may be found in error by an appellate court because of a failure to order a viva voce hearing to resolve the issue of credibility generated by conflicting affidavits.²

Notwithstanding the difficulties of judicially determining credibility in the face of conflicting affidavits, however, such conflicts are not an absolute bar to making findings of fact.³A court is entitled to make necessary fact and credibility findings, notwithstanding conflicting affidavits, where counsel have agreed that the matter should proceed to a determination on the affidavit material already filed rather than being adjourned to await answers to interrogatories.⁴A single untruth leaves the court on guard for more.⁵

An appellate court should not disturb an application judge’s findings as to the husband’s lack of credibility, which constitutes the basis of the judge’s rejection of the husband’s application to vary an existing consent order that provides for support payments in excess of the Federal Child Support Guidelines.⁶ Where the rights of the parties are dependent on conflicting issues of credibility, the trial judge should give reasons for his decision. In the

Page 539

absence of such findings, an appellate court cannot properly determine the merit of the appellant’s appeal and therefore the trial judgment must be set aside and a new trial ordered before another judge.⁷

[1] L.L. v. S.B., [2007] N.B.J. No. 502 (Q.B.); Passarello v. Passarello, [1998] O.J. No. 2792 (S.C.J.).

[2] Steele v. Koppanyi, [2002] M.J. No. 201 (C.A.).

[3] Hartley v. Del Pero, 2010 ABCA 182; D’Ambrosio v. D’Ambrosio, [2000] B.C.J. No. 1704 (S.C.) (submissions sought from counsel as to whether the case should proceed on affidavit evidence or be placed on the trial list).

[4] Schipper v. Maher, [2002] M.J. No. 319 (Q.B.).

[5] Welsh v. Welsh, [1998] O.J. No. 4550 (Gen. Div.).

[6] Jacobucci v. Jacobucci, 2006 MBCA 109.

[7] Mitro v. Mitro (1978), 1 R.F.L. (2d) 382 (Ont. C.A.).