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As Covid-19 continues to affect everyday life in Ontario, our firm remains open for business. In order to combat the spread of this virus, we are working remotely. We are temporarily not meeting with clients in person but our lawyers are working offsite; we are using telephone and other electronic means to work with our clients and to conduct initial consultations. Even though the courts are closed to all but urgent matters, we continue to do everything we can do to advance cases and obtain the best results that we can for our clients.

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Letters as Evidence

How can you use letters from doctors in court?

It is becoming increasingly common for parties in litigation to attach letters from doctors as evidence in family law proceedings.

Take a common situation where a husband and wife are embroiled in a spousal support dispute. The husband claims the wife is intentionally under-employed and the wife claims she cannot work for medical reasons. In situations like these, to support her position, the wife will often attach a signed letter from her family physician as evidence in an Affidavit on a motion or a Conference Brief, stating the wife cannot work due to a disability. The letter may go on to describe that the wife suffers from back pain for example, and that she cannot sit in a chair for more than 2 hours at a time, rendering her unemployable.

While this type of letter may seem convincing upon first glance, the courts have consistently held that this is improper practice, and that no consideration should be given to letters such as these. Where the author is not prepared to craft a formal report and give evidence in court as an expert under the Family Law Rules, it is highly unlikely the court will give any weight to such an opinion in a letter. The reasoning behind this is simple – there is no possibility of testing an allegation made in a letter through cross-examination.

If you find yourself in this situation, you need to be sure that your physician is willing to complete a formal medical report detailing your physician’s qualifications, the purpose of the report, a detailed opinion, and ensure that your physician is agreeable to signing an Acknowledgment of Expert’s Duty form to be attached to the report. You must also ensure that your physician is willing to be called as a witness to testify to that report. Any less and you risk having your evidence discounted by the court.

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