Building Credibility In Family Courts
2 minute readDivorce coaches and lawyers talk about credibility within family court proceedings. There is good reason for this as credibility is one of the main determining factors of having a positive outcome in a proceeding before the family court.
This can generally be a vague concept and certainly can alter from the perspective of judge to judge however in this blog we will share a case that is available through Canlii.
The case is as follows: https://canlii.ca/t/jg1s4 and was heard by The Honourable Madam Justice Deborah L. Chappel in The Superior Court of Justice 2021.
The highlights of this case involving the discussion on credibility are found below.
(41) Despite the challenges inherent in the task of assessing reliability and credibility, the caselaw has articulated numerous factors that the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C.C.A.), at para 9; R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.); R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at para. 23; R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75; R. v. Jeng, 2004 BCCA 464 (C.A.); Bradshaw v. Stenner, 2010 BCSC 1398 (S.C.), at para 186, aff'd 2012 BCCA 296 (C.A.); Brar v. Brar, 2017 ABQB 792 (Q.B.), at paras. 9-16; R.v. D.A., 2018 ONCA 612 (C.A.), at paras. 11-21 and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538 (S.C.), at paras. 34-40, these considerations include the following:
1. Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth (R. v. G.(M.); R. v. D.A.).
2. Was there a logical flow to the evidence?
3. Were there inconsistencies between the witness' testimony and the documentary evidence?
4. Were there inconsistencies between the witness’ evidence and that of other credible witnesses?
5. Is there other independent evidence that confirms or contradicts the witness' testimony?
6. Did the witness have an interest in the outcome, or were they personally connected to either party?
7. Did the witness have a motive to deceive?
8. Did the witness have the opportunity and ability to observe the factual matters about which they testified?
9. Did they have a sufficient power of recollection to provide the court with an accurate account?
10. Were there any external suggestions made at any time that may have altered the witness’ memory?
11. Did the evidence appear to be inherently improbable and implausible? In this regard, the question to consider is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10).
12. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
13. Where appropriate, was the witness capable of making concessions not favourable to their position, or were they self-serving?
14. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language.
However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).
Clearly, after reading the 14 criteria that the judge spelled out for this matter, finding credibility is an important part of any family law matter.