Evidence; procedure; costs

AuthorJulien D. Payne; Marilyn A. Payne
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 t hat provides corroboration. Several cr iteria should be considered by a
court in assessing credibility, including the reasonableness of the evidence; contradict ions
in the evidence (internal consistency); whether or not the witness’s character has been
impugned; pers onalit y and demeanou r; corroboration (ext ernal cons istency); self-intere st;
powers of observ ation and recol lection; and capacity of ex pression. 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 credibi lity were summa rized by Madam
Justice Dillon in Brad shaw v. Stenner,  BCSC  (CanLII) at para. , as follows:
Credibility i nvolves an assessment of the tr ustworth iness of a witness’ tes timony
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 fac tors such as the abilit y and opportun ity to observe events,
the f‌irmness of hi s memory, the ability to resist the inf‌luence of interes t to modify
his recollect ion, whether the witness’ ev idence harmonizes w ith independent evi-
dence that has been accepted, whether t he witness changes h is testimony duri ng
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 .
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 ev idence
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 (Faryn a 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 interna l inconsistencies, prior incon sistent statements, incon-
sistencies between t he witness’ testimony and the test imony of other witnesses.
b) e ability to review independent evidence th at conf‌irms or contradic ts 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 gi ven to the testimony of witness es who are
parties to proceed ings; it is important to consider the motive that w itnesses
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 b elieve or dis-
believe a witness’s testimony in it s entirety. On the contrar y, 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 i ssue of credibility generated by conf‌licti ng af‌f‌i-
davits. Not withstandi ng the dif‌f‌iculties of judicia lly determining credibility in the face of
conf‌licting af‌f‌idav its, however, such conf‌licts are not an absolute bar to making f‌indi ngs
of fact. A court i s entitled to make necessary f act and credibility f‌i ndings, notwith stand-
ing conf‌licting a f‌f‌idavits, where counsel have agreed that the matter should proceed to a
determination on the af‌f‌idavit material a lready f‌iled rather than being adjourned to awa it
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 distu rb 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.
A husband, whose wife has been ar tif‌icially i nseminated by an anonymous donor, may be
entitled to a declaration of paternity under the Ontar io 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 t he father of the
child but later seeks blood tests to conf‌irm t hat 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 par ticular ca se. Provincial statutory provisions t hat
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 a s follows: (i) a support order; (ii) an
interim order and an adjournment of the hearing to a speci f‌ied date; (iii) an adjournment
of the hearing to a specif‌ied date wit hout making an interim order; and (iv) a refusal to
make a conf‌irmation order. Where the court refuses to ma ke a support order, the court
must give reasons for that decision. Section  of the Inter jurisdictional 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-..

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