PT v ZWN

The aunt of a child, a non-parental guardian with limited powers, applied to increase her access time with the child. The father, the primary decision maker and guardian, cross-applied to terminate the aunt’s access time and guardianship.

On evidentiary scope, the father sought to admit records from previous proceedings, pursuant to Section 87 of the Family Law Act, SA 2003, c F-4.5 (“FLA”). However, the Court ruled that Section 87 is a procedural gateway only: it does not displace the Rules of Court or the Judge’s gatekeeping function. Consistent with Rule 5.2(1), evidence must be relevant, material, and not subject to an exclusionary rule. Applying that standard, Sidnell J. ruled that the records were inadmissible because they failed to meet these requirements.

The Father also sought to have Dr. Terry Singh qualified to provide expert evidence. The Court applied the Mohan factors and limited Dr. Singh’s opinion to general effects of high-conflict relationships on children and rebuttal of the treating therapist’s report. He was not permitted to opine on party-specific issues without proper foundation. Furthermore, pursuant to Rule 5.35, Sidnell J. did not permit Dr. Singh to refer to notes during his testimony that had not been exchanged with the opposing party.

On transcript use, Rule 5.31 permits “read-ins” from an adverse party’s Questioning or written answers. Pursuant to Rule 5.31(3), the party reading-in evidence of the adverse party is typically selected to address specific points. The Court reaffirmed that, subject to Rule 5.31(2), read-ins are considered the evidence of the party reading them in and are admissible only against the party questioned. Read-ins are presumed to be evidence, not admissions, unless the record clearly states otherwise. Read-in evidence may be contradicted or qualified by other evidence and weighed by the Trial Judge like any other evidence.

The father read in portions of the aunt’s Questioning, but much of it was not tied to a specific issue. The Court nevertheless weighed the read-ins together with the full record, except where the transcript contained clear admissions.

Having applied these procedural and evidentiary rules, Sidnell J. found that it was in the best interest of the child to reduce the aunt’s access time and granted the father’s cross-Application to terminate the aunt’s guardianship.