Evidence is the information you use in court to convince the judge to make the order you've asked for. The judge decides what evidence can or can't be presented in (shown to) court.
When a judge says that information can be presented in court, it's called admitting the evidence. This means that the judge will consider the evidence when they make their decision.
There are three ways to present evidence. You can use:
- Witnesses: sworn witnesses (including yourself) can tell facts they have first-hand (direct) knowledge of.
- Documents: you or a witness can bring documents as evidence.
- Expert opinion: a properly qualified expert can give an opinion by either coming to court or sending a written report.
What evidence can a judge look at in a family law case?
In family law, the person (the law calls them a party) asking the court to make an order has to show that the facts they're trying to prove are more likely than not to be true. The law calls this proving your case on a balance of probabilities. You do this by presenting your evidence.
A judge can consider evidence only if it's admissible. That means the information you're presenting to the judge has to be relevant to what you're asking the judge to decide. It's relevant only if it can help you:
- prove a material fact of your case, or
- disprove a material fact of the other person's case.
The judge has the final say about what's relevant and admissible.
The judge can also decide that certain evidence isn't admissible (the law calls this excluding the evidence) if it might unfairly affect a decision. That means the evidence is relevant but if it’s admitted, the ways that it might be unfair to one person are more important than how important it is to the case.
Two of the most common situations where a judge will exclude evidence are:
- Privilege: some information can't be used in court without permission. It's called privileged information. For example, communications (anything you write or say) between you and your lawyer are privileged but you can decide to disclose (show or talk about) this information if you want to. See Can your spouse use your settlement talks against you in court? to find out more about privileged information.
- Hearsay: usually, you or another witness can't repeat in court something that another person said or wrote outside the court. There are some important exceptions to this in family cases, though. Hearsay evidence isn't allowed at trials but it might be allowed on interim (temporary) applications.
You don't need to prove all facts in court
Some facts are so commonly known that you don't have to prove them.
For example, you don't need to prove that:
- July 1 in Canada is a statutory holiday, or
- the Family Law Act is a current law in BC.
Sometimes the people involved in a case agree on certain non-controversial facts (that is, facts that they'll both agree are true, like the date they got married, for example) so neither person has to take the time to prove them in court. These are called admissions. See Using a notice to admit in What is discovery? to find out more about this.
You can find the rules about evidence online:
- For the BC Supreme Court Family Rules, see Rule 9, Rule 10-4, Rule 13, and Rule 14.
- For the BC Provincial Court Family Rules, see Rule 10, Rule 11, and Rule 13.
See also the BC Evidence Act and the case law on the CanLII website. Researching other family law cases has tips for using the CanLII website.
The rules about evidence can be complicated. It's a good idea to speak to a lawyer. Some lawyers now offer unbundled legal services, which means you can pay them to help you with part of your family law problem, and you handle the rest of your case.
How to organize your evidence
If you're preparing your own evidence, it’s helpful to make a Trial Preparation Worksheet to help organize it. Once you've prepared the worksheet, you can use it as a checklist to be sure you have everything you need for trial.
- In the first column, list the points you have to prove at trial.
- In the second column, list the evidence that you're going to use at trial to prove those points.
- In the third column, you can write notes to yourself, like how you're going to present the evidence.
Here's an example of a Trial Preparation Worksheet:
| What I need to prove | Evidence I'll use | Notes |
|---|---|---|
| Ex-spouse's income | Financial statements | Document — introduced when ex-spouse is testifying |
| Special expenses | Receipts from dance classes | Document — introduced through my testimony |
| Where children live | Spoken evidence | My testimony and my mother's testimony |
| Selling of assets | Transcript from examination for discovery | Document — introduced through my testimony |
The judge and the other person only have a right to look at this if the person who wrote it looks at it while they're on the witness stand.