Sometimes, a party’s health can be relevant to the issues in a family law case, and they may want to include medical reports from a doctor as supporting evidence. While these may appear convincing and helpful, courts will still weigh whether such reports are admissible. This becomes important if the medical professional is not called to provide oral testimony. Even where medical reports are admitted as evidence, judges will have to decide how much weight to give the reports.

Husband Sought to Use Doctor’s Notes as Evidence of Inability to Pay Support

In Kausar v. Muhammad, the husband brought a motion to change the child and spousal support terms of an existing order, looking to terminate all existing, past, and future support obligations. The husband claimed that his mental health prevented him from working and that he remained totally disabled. He testified that he suffered from depression and anxiety and that his depression had affected his concentration and ability to focus. He claimed that this had left him with mood swings and “poor decision-making”. He further claimed that he had received therapy and a “high dose” medication for his conditions. The husband wished to rely on notes from a psychiatrist who had treated him to support these claims.

The two notes were almost identical. The judge noted that each contained only three sentences and lacked any details. The substance of the notes confirmed that the husband had “depressive disorders and generalized anxiety disorder”, was currently on medication and beginning counselling, and that he was not able to work. The note did not include details of when the doctor began to see the husband for counselling, the frequency of his sessions, what medications the doctor prescribed, what counselling he received, or what steps were taken to assist his return to work.

The husband also failed to call the psychiatrist to testify, and there was no evidence of her expertise. The judge had earlier indicated that he was not inclined to permit the notes as evidence without hearing oral evidence from the psychiatrist. Justice Kurz also questioned whether the notes were admissible on their own, but even if they were admissible, he indicated he would give them little weight without hearing from the psychiatrist. However, the psychiatrist was never called to testify, and no further records detailing the husband’s mental health were provided at trial.

Judge Questions Admissibility of Medical Notes Under Evidence Act

In considering the admissibility of the two notes, the judge first acknowledged that they were inadmissible as hearsay in the absence of oral evidence from the author. However, section 52 of the Evidence Act permits the admission of medical “reports” as evidence without the author’s testimony if certain conditions are met. The section states:

… a report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action.

If the two notes were admissible as evidence under section 52, the psychiatrist who authored the notes was a “participation expert” under the Family Law Rules. In Westerhoff v. Gee Estate, the court discussed the role of a participation expert, noting that they are not expert witnesses but may still provide opinion evidence. The Court indicated that a witness “with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents” where:

1. The opinion is based on the witness’s observation or participation in the events at issue; and
   
2. The witness formed their opinion in the ordinary exercise of their skill and experience.

Doctor’s Notes Lacked Insufficient Details

In this instance, the judge questioned whether the two notes qualified as medical reports under section 52 and whether they were admissible at trial. First, without the psychiatrist’s C.V., there was no evidence of her expertise. Secondly, nothing outlined the breadth of her qualifications or indicated whether she was qualified to offer an expert opinion about the husband’s inability to work.

The notes lacked details, and the judge questioned whether they could adequately be described as reports. Justice Kurz explained that expert reports may be admissible notwithstanding the prohibition against hearsay “to avoid having medical experts unnecessarily testify at trial”. However, for the judge, if the notes were supposed to “take the place of oral testimony,” it was difficult to see how these two brief notes could have done so.

Judge Gives Little Weight to Doctor’s Notes

Despite those considerations, the wife did not object to the husband relying on the notes. Also, some courts have broadly interpreted the term “report”. Nevertheless, the judge was still concerned about the proper weight to give the notes. In particular, the judge was not prepared to overlook that the notes omitted key details, including when the husband first attended treatment, his symptoms, treatment offered, progress, frequency of treatment, and prospects for future improvement. In addition, at an earlier conference, the husband was already directed to provide a comprehensive medical report if he was claiming that he was medically unable to work. Also, the court had few details of the psychiatrist’s qualifications. Because she was saying the husband could not work at any job, it was unclear whether she had the expertise to offer that opinion.

The judge determined that there were numerous problems with the husband’s credibility. The husband made an array of allegations without supporting evidence. While he claimed to have psychiatric conditions that prevented him from working, he only provided brief notes instead of calling the psychiatrist to testify. Justice Kurz concluded that even assuming the notes were admissible, he would give them little weight in assessing the husband’s claim.

Credibility Important When Independent Medical Evidence Lacking

Judges may assess the party’s credibility when a claimant does not provide a professional assessment of their alleged medical conditions. In Joyce-Corvaglia v. Corvaglia, the applicant wife claimed she was medically unable to work and required support. However, she declined to rely on any medical reports on her health conditions. Earlier cases have held that without medical reports supporting a claim, courts may be cautious about accepting the claimant’s evidence.

For example, in Cole v. Creith, the judge explained that an allegation of being afflicted with a medical condition not confirmed by medical reports is “fragile evidence”. Nevertheless, in this instance, the judge found that courts are not prohibited from ordering spousal support based on need and arising from medical conditions despite a lack of corroborating medical reports. In Naegels v. Robillard, the court held that judges have the discretion to order spousal support arising from a spouse’s inability to work without independent medical experts or reports.

To consider the claim, the court in Joyce-Corvaglia had to assess the wife’s credibility. Her financial circumstances were relevant, and the judge noted that she was receiving and supporting herself with Ontario Disability Support Program (ODSP) benefits. To qualify for the benefits, a claimant needs to be a “person with a disability”, which the Ontario Disability Support Program Act defines as a person having a substantial physical or mental impairment affecting the person’s ability to attend to his or her personal care, function in the community and function in a workplace. The judge determined the wife provided candid evidence without being evasive or hesitant. Her testimony was credible, and some evidence supported her claim. Therefore, Justice Price concluded that she could not work because of a medical condition and was entitled to spousal support.

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