Evidence; procedure; costs

• Author: Julien D. Payne; Marilyn A. Payne
• Pages: 551-598

551

CHAPTER 14

EVIDENCE; PROCEDURE; COSTS

A. CREDIBILITY

Where a court has serious concerns about the credibility of a part y on signif‌icant disputed

issues, it may reject the evidence unless there is other independent testimony or reliable

documentation that provides corroboration. 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’s character has been

impugned; personality and demeanour; corroboration (external consistency); self-interest;

powers of observation and recollection; and capacity of expression. In Gill Tech Framing

Ltd v Gill, Ker J of the British Columbia Supreme Court set out the following important

factors for resolv ing testimonial conf‌lict and credibi lity issues:

[] e factors to be considered when assessing credibility were summarized by Madam

Justice Dillon in Brad shaw v. Stenner,  BCSC  (CanLII) at para. , as follows:

Credibility involves an assessment of the trustworthiness of a witness’ testimony

based upon the veracity or si ncerity of a witness and the accuracy of t he evidence

that the witness provides (Raymon d v. Bosanquet (Township) (),  CanLI I 

(SCC),  S.C.R . ,  D.L.R.  (S.C.C.)). e art of assessment involves exam-

ination of various factors such as the ability and opportunity to observe events,

the f‌irmness of hi s memory, the ability to resist the inf‌luence of interes t to modify

his recollection, whether the witness’ evidence harmonizes with independent evi-

dence that has been accepted, whether the witness changes his testimony during

direct and cross- examination, whether the wit ness’ testimony seems unreas onable,

impossible, or unli kely, whether a witness has a motive to lie, and t he demeanour

 AMB v MAT,  BCSC  at para  , cited with approval in Mans oor v Mansoor,  BCSC .

 DLG v GDR,  NBQB ; Passarello v Passarello, [] OJ No  (SCJ).

  BCSC , cited in Sebok v Babits,  BCSC  at pa ra .

552CHILD SUPPORT GUIDELINES IN CANADA, 2020

ofa witness generally (Wallace v. Davis (),  O.W.N.  (Ont. H.C.); Fary na v.

Chorny, []  D.L.R.  (B.C.C.A.) [Faryna]; R. v. S.(R.D.),  CanLII  (SCC),

[]  S.C.R.  at para.  (S.C.C.)). Ultimately, the validity of the evidence

depends on whether the evidence is con sistent with the probabilities af‌fect ing the

case as a whole and shown to be i n existence at the time (Faryna at par a. ).

[] In asse ssing credibility in t he face of conf‌licting evidence, t he Nova Scotia Supreme

Court in Re: Novac Est ate,  NSSC  (CanLII) noted the following at para s.  and :

[] ere are many tools for assessing cre dibility:

a) e abi lity to consider inconsist encies and weaknesses in t he witness’s evidence,

which includes internal inconsistencies, prior inconsistent statements, incon-

sistencies between t he witness’ testimony and the test imony of other witnesses.

b) e ability to review independent evidence that conf‌irms or contradicts the

witness’ testimony.

c) e abilit y to assess whether the witness’ testi mony is plausible or, as stated by

the British Columbia Cou rt of Appeal in Faryna v. Chorny,  CanLII  (BC

CA), [] B.C.J. No. ,  CarswellBC , it is “ in harmony with the prepon-

derance of probabilities wh ich a practical [and] informed person would readily

recognize as rea sonable in that place and in those conditions,” but in doing so I

am required not to rely on fa lse or frail assumptions about hum an behavior.

d) It is possible to rely upon the demeanor of the witness , including their sincer-

ity and use of lang uage, but it should be done with caution (R. v. Mah, []

N.S.J. No. ,  NSCA  (CanLII), para s. -).

e) Special consideration must be given to the testimony of witnesses who are

parties to proceed ings; it is important to consider the motive that witnesses

may have to fabricate evidence. R. v. J.H.,  CanLI I  (ON CA), [] O.J.

No.  (Ont. C.A.), paras.-).

[] ere is no principle of law that requires a trier of fact to believe or dis-

believe a witness’s testimony in its entirety. On the contrary, a trier may believe

none, part or all of a wit ness’s evidence, and may attach di f‌ferent weight to dif‌fer-

ent parts of a witness’s evidence. (See R. v. D.R. CanLII  (SCC), [] 

S.C.R.  at para.  and R . v. J.H., supra).

A 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 af‌f‌i-

davits. Notwithstanding the dif‌f‌iculties of judicia lly determining credibility in the face of

conf‌licting af‌f‌idavits, however, such conf‌licts are not an absolute bar to making f‌indings

of fact. A court is entitled to make necessary fact and credibility f‌indings, notwithstand-

ing 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. A single untruth leaves the court on gu ard for more.

 Steele v Koppanyi, [] MJ No  (CA).

 Hartley v Del Pero,  ABCA ; D’A mbr osi o v D ’Amb ros io, [] BCJ No  (SC) (submissions sought

from counsel as to w hether the case should procee d on af‌f‌idavit evidence or be placed on t he trial list).

 Schipper v Maher, [] MJ No  (QB).

 Welsh v Welsh , [] OJ No  (Gen Div).

Evidence; Procedure; Costs 553

An appellate court should not disturb an application judge’s f‌indings as to the hus-

band’s lack of credibility, which constitutes the basis of the judge’s rejection of the hus-

band’s application to vary an existing consent order that provides for support payments in

excess of the Federal Child Support Guidelines. Where the rig hts of the parties are depend-

ent on conf‌licting issues of credibil ity, the trial judge should give reasons for his decision. In

the absence of such f‌indings, an appellate cour t cannot properly determine the merit of the

appellant’s appeal and therefore the trial judgment must be set aside and a new tria l ordered

before another jud ge.

B. PROOF OF PATERNITY; BLOOD TESTS AND DNA TESTS;

ARTIFICIALINSEMINATION

A husband, whose wife has been artif‌icially inseminated by an anonymous donor, may be

entitled to a declaration of paternity under the Ontario Children’s Law Reform Act and

may be granted access privileges and ordered to pay child support .

Where a mother is married and has acknowledged her husband as the father of the

child but later seeks blood tests to conf‌irm that another man is the father for the purpose

of obtaining support, the equitable doctrines of laches and the applicant’s failure to come

with clean hands are i rrelevant.

Where paternity is disputed, provincial statutory provisions may empower the court

to order blood tests or DNA tests. It is open for a judge to draw an adverse inference from

a refusal to submit to the tests, although whether such an inference should be drawn may

depend on the circumstances of the particular case. Provincial statutory provisions that

empower a court to order blood or DNA tests and to draw an adverse inference against a

party who refus es to submit to such tests do not violate sections , , or  of the Canadian

Charter of Rights and Freedoms.

Section  of Newfoundland and Labrador’s Interjurisdictional Support Orders Act

prescribes the only orders that can be gra nted when a court is considering conf‌irm ation of

an extra-provincial order for child support. ey are as follows: (i) a support order; (ii) an

interim order and an adjournment of the hearing to a specif‌ied date; (iii) an adjournment

of the hearing to a specif‌ied date without making an interim order; and (iv) a refusal to

make a conf‌irmation order. Where the court refuses to make a support order, the court

must give reasons for that decision. Section  of the Interjurisdictional Support Orders

 Jacobucci v Jacobucci,  MBCA .

 Mitro v Mitro (),  RFL (d)  (Ont CA).

RSO , c C.

TDL v LRL (),  RFL (th)  (Ont Ct Gen Div).

D(JS) v V(WL) (),  RFL (th)  (BCCA).

FJN v JK,  ABCA ; JCC v N NC,  ABCA ; X v Y,  BCSC ; DF v KG,  NSSC ; Re

H (),  RFL (d)  (Ont HCJ).

 See FJN v JK,  ABCA ; Fallon v Rive rs (),  RFL (d)  (BCSC); L(FA) v B(AB) (),  RFL

(th)  (Man CA); P(L) v J(W) (),  NBR (d)  (QB); Migwans v Lovelac e,  NWTSC ;

CMM v DGC,  ONSC  (application by ch ild under Family Law Act, RSO , c F.). Compare J v

N (),  RFL  at – (Man CA).

Part I of the C onstitution Act, , being S chedule B to the Canada Act  (UK ), , c  [Charter].

Crow v McMynn, [] BCJ No  (SC); LLDS v WGF, [] OJ No (Ont Ct Gen Div).

SNL , c I-..