In a family law appeal concerning custody, access, and allegations of parental alienation, the Office of the Children’s Lawyer brought a motion to adduce fresh evidence in the form of an affidavit from a clinical investigator.
The father opposed admission of the affidavit and alternatively sought to strike portions or require cross-examination.
The court reviewed the governing test for fresh evidence under s. 134(4) of the Courts of Justice Act and applicable appellate jurisprudence, noting that a more flexible approach may apply where the best interests of children are implicated.
Portions of the affidavit providing background information were admitted, certain paragraphs were excluded, and other portions containing hearsay statements from the mother and children were conditionally admitted subject to a voir dire on necessity and reliability.
The motion of the Office of the Children’s Lawyer and the father’s responding motion were each allowed in part.
