In the previous sections of this chapter, you learned about using laws and case law to build your case. In this section, you will learn what evidence to bring forward, how to organize it and how to use it in court. This is an important step in building your case.
According to a BC study of family law court cases, presenting evidence is the biggest problem that self-representing litigants face. Many self-reps struggle to get the outcome they want because they fail to present their evidence well.
Evidence is defined as “the facts used to support a conclusion”. In legal matters, there are two types of evidence:
The evidence should support your claim and allow the judge to make the conclusion that your order be granted. (E.g. if your conclusion is “it’s raining outside”, your evidence to support this might be that people outside are using umbrellas or that you got wet when you went outside.) Let’s take a look at each type of evidence more closely.
BC Supreme Court Family Rules:
BC Provincial Court Family Rules:
Document evidence is NOT just paper documents. Document evidence could be a picture, video, sound recording, text message, email or something else. You will most likely need a range of document evidence to prove your case.
For example, if you’re dividing your family home, document evidence might include the purchase agreement and a professional property assessment report. To be successful in court, you need to have your document evidence to be organized.
Judges can only consider evidence if it’s relevant to the issue in the trial. Don’t present irrelevant information. Don’t tell stories.
Don’t try to present evidence about the other parent’s past faults unless it is logically connected to an issue the Judge must decide on.
Steps of dealing with document evidence:
With text messages or emails, it is important to provide the entire conversation, and not just one or two lines of text.
Include the entire conversation, but highlight the parts you want the Judge to consider.
Sort your documents according to the issues. Create separate files for each issue. For example, have one file for child support (such as hockey equipment receipts) and have another for property division.
As you gather document evidence, you will find it helpful to create sub-categories for some of the key issues. For example, with the property division file, you might have individual files for the house, debts, cars and household items. Whatever works for you – have a system and stick to it.
The other type of evidence presented in court is oral evidence. This is when a person provides verbal information in court. To testify means to provide oral statements in court that are sworn to be true.
There are two types of oral evidence:
1) Testimony of Parties: This is when you or the other party named in the case gives sworn oral statements in court.
2) Testimony of a Witness: This is when a person who is not a party in the case comes to court to answer questions.
Both you and the other party will be able to give evidence. You are not required to testify (give sworn evidence at court), but may do so if you wish. Often, it is helpful to testify because you have first-hand knowledge of the facts. If you testify, you will need to truthfully answer the questions asked by the other party as well as the judge.
You and the other party may bring witnesses to court to help prove your case. Witnesses will need to answer questions asked by both parties and the judge. When you call a witness to court you will get to ask questions first. A witness cannot lie when they answer. If they do, there may be serious penalties, such as a fine or jail time.
It’s never too early to start thinking about who you can call as a witness.
Who to call as a witness?
A witness should be able to help establish the facts you’re trying to prove. If you have documents you want to present to the court, you may need to have a witness explain them or verify their authenticity. Witnesses can also give evidence on things they heard or saw. For example, if your neighbour told you about seeing a fire in your backyard, you could have your neighbour provide this information in court.
It is important that the witnesses you choose are credible, articulate, and sincere. You can’t tell your witnesses what to say. But it is helpful to review with the questions that you will ask and the information they will provide. It is also helpful to consider what questions the other party or the judge may ask.
You will need to pay the expert for their time, which could end up getting expensive. Consider how important this expert is.
In certain situations, you may want to call an expert to present evidence. Experts are people with broad and authoritative knowledge in a particular area. Experts are allowed to present opinions as evidence (something non-experts aren’t allowed to do). Experts help the court by providing specialized information, such as child psychologist.
If you want to present expert evidence in court, you must
Using witnesses before trial
Witnesses are usually called to give their evidence at trial. But you may need to provide this evidence to court before trial – such as at an interim application or in court documents. You can use witness evidence by getting written statements that they swear are true. This type of evidence is presented to the court in an affidavit. You’ll learn more about affidavits in Chapter 8. For now, just keep in mind that you can use written statements from a witness as document evidence.
Take inventory of your evidence both documental and oral fill out the Evidence Inventory Worksheet. This will help you keep track of your evidence so you can present a stronger case.