“The use of affidavit evidence at trial is increasingly relied upon” as a tool to shorten and bring focus to the trial process, with the intention of minimizing costs of the parties: Rule 23(20.1), Family Law Rules. It can be quite effective. It can also prove to be a challenge for counsel accustomed to drafting affidavits for use on interlocutory motions. Hearsay evidence is permitted in affidavits for procedural matters before the Court; it is not permitted for trials.
I accept the general principle that the rules of evidence must be applied in a relatively flexible fashion when considering the best interests of the children: Power v. Power, 2004 ONCJ 281, at para. 51. This ensures all relevant information, which may include evidence of character, lifestyle or past conduct, is before the Court when facing the difficult assessment of what parenting plan is in the best interests of the children. However, the rules of evidence respecting hearsay must not be relaxed at trial simply because a witness provides evidence in chief by way of a sworn affidavit. This applies in all trials, whether contested or uncontested.”