“During the father’s cross-examination, the mother sought to introduce a series of cheques and other financial records. The father objected to this evidence as the mother failed to give the required 7-day notice under ss. 35(3) of the Evidence Act, RSO 1990, c. E.23 for this evidence to be adduced at trial. I reserved my decision on the objection and heard evidence for this objection on a blended voir dire with the evidence at trial. As set out below, I find that this evidence should be admissible.
Both sides acknowledge that the mother gave no notice as required under ss. 35(3) of the Evidence Act.
Despite a party’s non-compliance with the requirement under ss. 35(3) for notice to introduce business records, the court may, in the circumstances of a trial, exercise its discretion to admit this evidence: Kumsathira v. Pembridge Insurance Company, 2007 ONCA 53 at para 3. The purpose of the notice requirement under ss. 35(3) is to avoid surprises at trial and ensure that a party knows the case they need to make in preparing for trial. I add that the most basic obligation in family law is the duty to disclose financial information, and that a party’s failure to abide by this fundamental principle impedes the progress of family litigation, causes delay, and generally acts to the disadvantage of the other party and the administration of justice: Roberts v. Roberts, 2015 ONCA 450 at paras 11-12. I acknowledge the importance of having relevant and probative evidence before the court so it has the best possible evidentiary record for its consideration.”
Anthony v. Ogunbiyi, 2024 ONSC 7287 (CanLII) at 8-10