Evidence Essentials: The Hidden Power of Proper Procedure
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Family law trials are often fact-driven. Issues like parenting time, mobility, decision-making responsibility, and support, depend heavily on witness testimony. Documentary evidence, like text messages, calendars, and school reports, is important, but witness testimony often shapes the court’s findings of fact.
Trials are won not just on facts, but on how those facts are presented and tested. One of the most common misunderstandings about trials is that they are decided simply on who seems “more believable.”
In reality, trials — especially family law trials — are governed by rules of evidence and trial procedure that shape what evidence the judge can accept, how testimony can be challenged, and how credibility is assessed. These rules can make the difference between winning and losing a case, particularly when there are conflicting versions of events.
One of the most important of these rules is the rule in Browne v. Dunn, a principle that every trial lawyer must understand and apply carefully. It is not merely a procedural technicality. It is a rule that goes to the heart of fairness and credibility at trial.
The rule in Browne v. Dunn comes from a decision of the House of Lords in 1893 — Browne v Dunn (1893) 6 R 67 (HL) — but it remains a cornerstone of modern Canadian trial practice, including in Ontario family courts. The rule can be stated simply:
If you intend to later challenge or contradict a witness’s evidence, you must put your contradictory evidence to them during cross-examination and give them a fair chance to respond.
This means that if a witness testifies to something that a family law litigant disputes or intends to challenge, that litigant cannot sit quietly during their testimony and wait until closing arguments or his or her own evidence to spring a contradictory version of events. Fairness demands that the witness be given the opportunity to address the contradiction while still in the witness box.
For example, if a witness in a family law trial testifies that a parent never attended a child’s medical appointments, and the parent intends to testify that he or she attended every appointment, the parent must put that position to the witness by way of cross-examination.
This is not about being confrontational; it is about procedural fairness and trial integrity. A trial is not a game of ambush, and witnesses are entitled to respond to allegations or contradictory evidence while they are on the stand.
If contradictions are not properly put to the other side’s witnesses, the judge may conclude that a litigant’s version of events is unreliable — or simply give it little weight.
If counsel intends to contradict a witness but fails to give them the chance to respond, the court may:
Place less weight on the contradictory evidence later presented;
Prohibit the party from making submissions based on the contradiction; or
Draw an adverse inference against the party who failed to confront the witness.
Judges rely heavily on assessing credibility. In family law, where cases often turn on competing narratives, a litigant’s failure to properly produce his or her own evidence, and/or to contradict the other party’s evidence, can be outcome-determinative.
