Divorce or separation proceedings: What you need to know about evidence

What is the burden of proof?

As a general rule, the person who took the initiative to begin court proceedings – known as the “plaintiff” – is the one who has to prove to the court that they’re entitled to what they’re claiming. We say that “the burden of proof is on” this person.

The person who was served with the judicial proceeding – known as the “defendant” – might also have to file some evidence. This is the case, for example, when:

• the defendant wants to contradict evidence presented by the plaintiff. In that case, we say that the “burden of proof shifts to the defendant”.
• the defendant presents their own requests to the Court in what is called a “counterclaim.”

In a divorce or separation hearing, the person who bears the burden of proof doesn’t have to prove the facts with absolute certainty. They have to convince the judge, using documents or testimony, that their version is more likely than the version of the other person involved. This is called “proof on a balance of probabilities.”

The burden of proof on a balance of probabilities is different from the burden in the criminal law (for example in a trial for sexual assault or murder ). In the criminal law, the Director of Criminal and Penal Prosecutions (the “DCPP”) has to prove that the accused committed the acts they’re charged with “beyond a reasonable doubt.”

The Legal Burden of Proof (Éducaloi)

Evidence can take many forms

At the hearing, proof is made using “evidence.”

Evidence can take many forms, for example:

• A person’s testimony
• A written document (e.g., contract, receipt of payment, etc.)
• A photograph
• An audio or video recording
• An object.

Some things don’t have to be proved to the judge

Some things don’t have to be proved to the judge, such as:

The applicable law in Quebec

The judge already knows most of the laws that apply in Quebec. Therefore, for example, it isn’t necessary to file the Civil Code of Québec.

Presumptions

A presumption is a kind of reasoning that allows the court to draw a conclusion about an unproved fact from a proved fact. In other words, if you prove X, the court can conclude that Y is true.

There are two types of presumptions:

• A “presumption of fact”
• A “legal presumption”

A “presumption of fact” exists when one fact makes it possible to conclude that another fact occurred. For a judge to recognize a presumption of fact, the connection between the proved fact and the unproved fact must be “serious, precise, and concordant.”

“Legal presumptions” are set out in the law.

Some presumptions can be rebutted, however, if a person presents evidence to the contrary. For example, you can rebut the legal presumption that everyone is in good faith by presenting evidence to the contrary that a person acted in bad faith.

A presumption that can be rebutted is called a “simple presumption,” whereas a presumption that can’t be rebutted is called an “absolute presumption”.

“Notorious and indisputable” facts

Some facts are so obvious that they don’t have to be proved. For example, it isn’t necessary to prove that December 1, 2022 was a Thursday, that the COVID-19 virus exists, or that there was an economic recession in Canada in 2008.

The judge can refuse some evidence

Evidence is governed by certain rules. If a piece of evidence does not comply with one of these rules, your ex can make an objection to your presenting it to the judge. The judge can then refuse to consider your evidence to render a judgment.

Here are a few examples of rules of evidence.

• The evidence must be relevant. In other words, it must relate to the dispute and contribute to resolving the issues.
• The evidence must have been obtained without violating the right of professional secrecy.
  
  

  

  The Duty of Confidentiality of Professionals (Éducaloi)

• With some exceptions, the evidence must have been obtained in a manner consistent with the fundamental rights of all parties, such as the right to privacy or dignity.
  
  

  

  Fundamental rights and freedoms (CDPDJ)

To learn more about the rules of evidence, speak with a lawyer or visit a legal clinic.