Credibility in Family Law Cases

In family law cases, credibility can be a pivotal factor in determining the outcome. Often, the difference between two conflicting versions of events comes down to which party’s testimony is deemed more credible by the court.

In Brar v. Brar, 2017 ABQB 792, Justice deWit (as he then was) provided a comprehensive framework for assessing credibility, which is essential for family law proceedings.

This case offers key insights into how courts evaluate the honesty, reliability, and trustworthiness of witnesses in cases where there are significant issues of conflicting testimony. In family law, credibility can be a deciding factor in many disputes.

Family law disputes often involve two witnesses’ versions of events. The credibility of the witness determines which version of events is accepted.

What is Credibility in Legal Terms?

In legal contexts, credibility refers to the trustworthiness of a witness’s testimony. When there is a dispute between the parties in a case – such as whether a certain event happened – the court must determine which party is more believable. This is particularly important in family law matters, where one party’s word against the other can often decide how property is divided, whether support is awarded, or in determining parenting arrangements.

In Brar v. Brar, the court emphasized that credibility involves a thorough analysis of several key factors.

Factors the Court Considers When Assessing Credibility

The court will consider various factors to determine whether a witness is honest, reliable, and trustworthy. Below are some of the main considerations that often arise in family law proceedings:

1. Inconsistencies and Contradictions

Likely the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said under oath and what the witness has said on other occasions, whether under oath or not. While minor discrepancies are often understandable, significant contradictions in testimony can suggest carelessness or dishonesty.

2. Inherent Improbability and Implausibility

Courts assess whether the witness’s story is plausible. If a witness’s testimony is so far-fetched or inconsistent with common sense that it seems unlikely to be true, this could seriously undermine their credibility.

3. Opportunity and Ability to Observe the Event

Whether the witness had the opportunity and ability to observe the events they are testifying about. For example, if someone claims they saw something happen, but they were not in the vicinity at the time, their credibility could be in question.

4. Making Concessions Not Favorable to Their Position

A witness who is willing to concede points that are not in their favour may be seen as more credible. Being open about the facts, even when they are detrimental to one’s position, can show honesty and a genuine attempt to tell the truth. This factor can work in tandem with the ability to concede clear facts. A witness’ credibility is viewed more favourably when they concede and address clear facts that are not in their favour.

5. Evasiveness and Inability to Concede Clear Facts

A witness who avoids answering direct questions or refuses to acknowledge straightforward facts may appear evasive. Evasiveness can indicate a lack of honesty or reliability, which is a red flag when assessing credibility.

6. Certainty of Memory

How clearly and consistently a witness remembers the event is crucial. If a person’s memory seems unclear or fluctuates over time, it might indicate that they do not recall the event accurately, which can undermine their credibility.

7. Motive to Lie

Courts consider whether a witness has any reason to lie or alter the truth. This is particularly important in family law cases, where parties often have significant personal stakes in the outcome, such as financial interests or parenting of children.

8. Corroboration

A credible witness’s testimony is often supported by other evidence, such as documents, other witnesses, or physical evidence. Corroborating evidence strengthens a witness’s story and can help establish the truth of their version of events.

9. Bias

If a witness is biased—either because of their relationship to one of the parties or due to personal interests—they may not be as trustworthy. Courts are cautious about relying on the testimony of biased witnesses, as their objectivity could be compromised. This factor can be relevant when relying on third-party testimony from a witness who is clearly aligned with one party over the other.

The Importance of Consistency in Testimony

As highlighted in Brar v. Brar, one of the most telling indicators of credibility is the consistency of a witness’s testimony. If a witness is inconsistent about material facts – those that directly affect the case – this can suggest they are either lying or mistaken. Inconsistent testimony can cause the court to question the truth of what the witness is saying.

Assessing credibility is a nuanced and vital part of family law proceedings. The case of Brar v. Brar offers a valuable framework for understanding how courts evaluate trustworthiness.

For anyone involved in a family law case, understanding these factors can help them appreciate why the court may find one party’s evidence more convincing than the other’s. It is important to approach family law matters with honesty and consistency, as credibility plays a central role in ensuring a just outcome.

In family law cases, where there is often a great deal of emotional tension and conflicting interests, a party’s credibility may be the deciding factor in determining how assets are divided, determining parenting time or guardianship, and how financial support obligations are allocated.