Often, I am asked by clients as to what to expect at trial, especially in a he-said and she-said situation – these examples are equally reflective of criminal and family cases where credibility is an issue. The aspect of a litigant / client who testifies in court has to do with the issue of the Court believing that person – this is called credibility. Is the witness credible? – or in other words, is the witness believable? What is it that the Court is looking for in deciding whether a witness is believable or not? What factors is the Court looking for? We have guidance from case laws to determine these factors: Chappel J. in Al Sajee v. Tawpic, 2019 ONSC 3857, provides insightful guidance to the process of assessing the credibility of the parties who give evidence in a family law case: [42] The case-law has highlighted that the assessment of credibility and reliability is not an exact science; rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. c. Gagnon, 2006 SCC 17 (S.C.C.) (CanLII), at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51 (S.C.C.) (CanLII), at para. 49; The complexity of the task is highlighted by the fact that the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), these considerations include the following: a) Were there inconsistencies and weaknesses in the witness' evidence, including internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the documentary evidence, or between their evidence and that of other witnesses? b) Did the witness have an interest in the outcome or were they personally connected to either party? c) Did the witness have a motive to deceive? d) Did the witness have the ability to observe the factual matters about which they testified? e) Did they have a sufficient power of recollection to provide the court with an accurate account? f) Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10) g) Was there an internal consistency and logical flow to the evidence? h) Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
i) Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?
j) Is there independent evidence that confirms or contradicts the witness' testimony? k) Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54). In a recent family law case, Verma v. Bhooi, 2019 ONSC 6251, Justice Emery applied the above principles in this case that related to deciding the date of separation of a marriage. So, what did the Court do? How did it assess credibility? Justice Emery stated: [92] Before deciding the first question, it is appropriate to comment on my assessment of the credibility of the parties generally. I listened carefully to each Ms. Verma and Mr. Bhooi as they gave evidence in chief to supplement their affidavits, and when they were cross-examined in turn.
[93] Overall, I preferred the evidence of Ms. Verma over the evidence of Mr. Bhooi. I found Ms. Verma’s memory to be far more comprehensive, her recall more precise, and her evidence relatively consistent with the documentary evidence and the other facts. Sad as it was, her story made more sense.
[94] The conflicting evidence given on the date of separation issue depends largely on credibility, and on applying common sense to determine that credibility.
[95] Mr. Bhooi testified that he and Ms. Verma separated in 2003 after his mother suffered a stroke in Michigan. Ms. Verma returned to India, where she remained until 2008. He states they separated in 2003, never to reconcile. Yet Mr. Bhooi continued to send Ms. Verma money by wire transfer, often under the pretext of keeping the peace.
[96] Ms. Verma argues that she left Canada for India at Mr. Bhooi’s request that she remove herself to save their marriage. She submits the evidence shows Mr. Bhooi bought her an airline ticket back to Ontario in 2007. When she returned, Mr. Bhooi would stay with her even though he would often leave during the night, disappearing for days at a time.
[97] Ms. Verma came back to Ontario in 2008. Mr. Bhooi states that he convinced her to return to India in August of that year, shipping a storage container of their apartment furniture along with her belongings to her.
[98] On all the evidence, I find that Mr. Bhooi had either not told his parents, or was embarrassed he had given in to his attraction to Ms. Verma so soon after divorcing his first wife, that he concealed their marriage from them. This is the only logical reason his father denied any knowledge of the marriage even when confronted by Ms. Verma about it.
[99] Mr. Bhooi contends that he continued to send money to Ms. Verma to buy peace. Yet he could have made an application to the court in Ontario for a divorce at anytime after one year had passed. He did not. That he continued to send money to Ms. Verma in India only confirms the nature of their ongoing relationship as a couple.
[100] Alternatively, Mr. Bhooi and Ms. Verma separated and remained separated between 2003 and 2007 while she was in India. However, whether Ms. Verma came back in 2007 or the container was shipped independent of her return to India in 2008, she and Mr. Bhooi reconciled in November 2009 when he visited her in India and promised to bring her back soon.
[101] The status of their relationship as a loving one is confirmed by the letters they wrote to one another while Mr. Bhooi served his prison sentence for fraud in 2010 and 2011.
[102] Mr. Bhooi brought Ms. Verma back to Ontario in September 2012, as promised. He instructed his lawyer, Mr. Peter Verbeek to draw a will in November 2012 in which he
described Ms. Verma as his wife and beneficiary of one half his estate. His evidence that he made a will containing this statement and bequest to satisfy Ms. Verma’s demands is the product of contorted logic, and too incredible to be believed as a fact.
[103] Ms. Verma’s evidence of Mr. Bhooi’s conduct is consistent with her own belief that their marriage continued until 2015, despite unpleasant exchanges with Mr. Bhooi’s father, who was still hostile to the marriage, and with Mr. Bhooi himself. It was only when Mr. Bhooi left her in the apartment on Absolute Avenue without rent, and she learned from a third party that Mr. Bhooi had booked her a flight to India in May 2015 without informing her, that she finally accepted that the marriage had irretrievably broken down. She took steps a short time later to commence this application.
[104] Despite Mr. Bhooi’s periodic overtures to mend their broken relationship, or Ms. Verma’s admitted participation in romantic interludes with him from time to time up to July 2017, I find as a fact that the parties separated on May 31, 2015.
Analysis and lessons from the cases and principles above: The key take away terms are logic and common sense related to fact based evidence – i.e., the facts and circumstances of each case. In my opinion, it is important to prepare thoroughly for a trial – to have pre-trial preparation meetings with the client to thoroughly go over each and every possible question from both an examination in chief perspective and from the view of cross examination. Along with this, it is important to prepare using documentary evidence to supplement the verbal testimony. Preparation is the only sure key to success, to ensure that there is proper logical flow of evidence; ironing out of contradictions; clear recollection of events; and if this is supported by others or by documentary evidence. In other words, you need a lawyer who will work with you closely to put in place the steps key to preparation. At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in Port Elgin and in Owen Sound. We look forward to serving you!