Witness Statements in an Ontario Custody Case: A PI's Guide

A witness statement in an Ontario child custody case is a written, sworn account from someone with firsthand knowledge of a parent’s care of the child, typically filed as a court affidavit. Both the federal Divorce Act and Ontario’s Family Law Rules set out how that evidence reaches a judge.

Under Section 16(2) of the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a court making a parenting order must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being, weighed against the ten best-interests factors in Section 16(3). Documented third-party evidence, including a properly obtained witness statement, is ultimately marshalled to support that test. This guide covers who can give a witness statement, how a licensed investigator lawfully collects and records one, what makes it admissible under the Family Law Rules, and why some statements carry no weight at all.

What is a witness statement in an Ontario custody case?

In an Ontario custody case, a witness statement is a written account from a third party, such as a family member, teacher, neighbour, or coach, describing firsthand observations relevant to a parent’s care of the child. To function as court evidence rather than an out-of-court assertion a judge cannot rely on, it is typically sworn or affirmed on Form 14A, the general-purpose affidavit under Ontario’s Family Law Rules, O. Reg. 114/99.

Ontario’s Guide to Procedures in Family Court distinguishes lay witnesses, people testifying from personal knowledge such as a relative, teacher, or neighbour, from expert and participant-expert witnesses who offer professional opinion evidence. A witness formally required to attend trial must be served with a summons, Form 23 for an Ontario resident or Form 23A for someone outside Ontario. A witness who cannot attend in person may instead give evidence by sworn affidavit filed at least 30 days before trial. A witness statement gathered outside these channels is not itself testimony; it becomes court evidence only once it is sworn, served, or otherwise put into the record in one of these forms. That procedural distinction matters most at the outset of a file: a family member’s account collected informally over the phone carries a different evidentiary status than the same account sworn on a Form 14A affidavit and served on the other party.

What Law Governs Witness Evidence in Ontario Custody Disputes

Which statute applies depends on the parents’ marital status. Married parents proceeding under a divorce use the federal Divorce Act’s parenting-order framework, Section 16(2) and Section 16(3). Unmarried parents, or custody claims not tied to a divorce, proceed under Ontario’s Children’s Law Reform Act, R.S.O. 1990, c. C.12, Section 24. Both statutes apply an almost identical best-interests test, which is why the same category of witness evidence is relevant under either one.

Section 24 of the CLRA directs the court to consider all circumstances of the child and give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. That includes the nature and strength of the child’s relationships with each parent, siblings, and other important people in the child’s life. A witness statement documenting those relationships or that safety picture is being weighed against the same statutory factors regardless of which Act governs the case.

Mothers held sole physical custody in 56% of Ontario-inclusive Canadian court orders in 2018-19, and contested litigation produced sole maternal custody in 61% of cases versus 36% shared custody in consent orders. That gap is part of why documented, court-ready third-party evidence like a witness statement carries weight in a contested case. See our compilation of child custody statistics in Canada for the full breakdown.

Who Can Provide a Witness Statement in a Custody Case

Ontario’s Guide to Procedures in Family Court recognizes three categories of witness in a custody case:

• Family members, teachers, coaches, neighbours, and childcare providers can serve as lay witnesses when they have firsthand observations of a parent’s care of the child.
• Expert witnesses are professionals retained specifically for the litigation to offer opinion evidence within their area of expertise.
• Participant experts, such as a treating doctor, offer professional opinion based on an existing involvement with the family rather than being engaged for the case.

Anyone with firsthand, relevant knowledge can potentially serve as a lay witness. What a person is willing to say, and whether they are willing to say it under oath, matters more than their relationship to the family. That credibility calculation is one reason family law counsel and a licensed investigator screen potential witnesses together before an interview is scheduled, rather than approaching whoever is most readily available.

How a Licensed Investigator Collects and Records a Witness Statement

Collecting a witness statement for a custody file is licensed investigative work, not an informal favour. Under Section 6 of Ontario’s Private Security and Investigative Services Act, 2005, S.O. 2005, c. 34 (PSISA), a person may not act as, or hold themselves out as, a private investigator for remuneration, including conducting witness interviews and collecting statements for a custody file, without holding a valid provincial licence and being employed by, or a principal of, a licensed business entity. PSISA Section 45(1) sets the penalty for contravening that requirement: an individual faces a fine of up to $25,000 and/or up to one year of imprisonment, and a corporation faces a fine of up to $250,000.

A licensed investigator typically follows a defined sequence once a willing witness has been identified:

1. The investigator confirms the witness’s identity and their relationship to the family, and explains that participation is entirely voluntary.
2. The witness is interviewed and asked to describe, in their own words, what they personally observed.
3. The account is recorded, either in writing or on audio or video with the witness’s knowledge and consent, and reviewed with the witness for accuracy.
4. The statement is put into a form family law counsel can move toward a sworn Form 14A affidavit.

The completed statement is dated, attributes each observation to the witness by name, and notes whether it was given in writing, on audio, or on video so counsel can confirm the correct form of proof before relying on it.

When a statement is captured on audio or video rather than in writing, Sections 31.1 to 31.3 of the federal Canada Evidence Act, R.S.C. 1985, c. C-5 place the burden on the party introducing an electronic document to prove its authenticity, and set out how the integrity of the recording system can be established. A licensed investigator’s recorded interview notes are prepared with that authentication framework in mind.

What Makes a Witness Statement Admissible in Ontario Family Court

Under Rule 14 of Ontario’s Family Law Rules, O. Reg. 114/99, an affidavit used on a motion must, as much as possible, contain only information within the personal knowledge of the person signing it. That is Rule 14(18). It may include hearsay, something the affiant learned from someone else, only if the source is identified by name and the affiant states a belief that the information is true. That is Rule 14(19).

That distinction is why a witness statement’s admissibility turns on the witness describing what they personally observed, not what they were told by someone else. A witness who saw a parent miss three scheduled exchanges in a row is describing personal knowledge, and that account can stand on its own in an affidavit. A witness repeating what a child told them about those exchanges is offering hearsay, admissible only if the source is properly identified and attributed under Rule 14(19). A statement that blends the two without distinguishing them invites a judge to give the hearsay portion little or no weight. Counsel typically reviews a draft statement before it is sworn, checking that personal-knowledge and hearsay portions are clearly separated so the affidavit holds up if the other party challenges it.

Why Some Witness Statements Carry No Weight in Court

Not every witness statement carries equal weight in Ontario family court, and some carry none at all:

• A surreptitiously recorded statement risks little to no weight: in Sordi v. Sordi, 2011 ONCA 665, the Ontario Court of Appeal upheld a trial judge’s discretion to give little weight to, or exclude, a surreptitiously recorded conversation between the parties, recognizing sound public-policy reasons to discourage secret recording in family proceedings.
• An account of what a witness was told by someone else, rather than what they personally observed, carries little weight as hearsay unless the source is identified by name under Rule 14(19).
• A statement collected by someone acting as a private investigator without a PSISA licence invites scrutiny of how it was obtained, separate from what it says.

The same public-policy logic against secret recording could reasonably extend to recorded witness evidence obtained without the other party’s knowledge, not only recordings between the parties themselves.

What This Means for You

Statistics Canada recorded more than 278,500 active family law cases in Canadian civil courts in 2024/2025, a 14% increase over the prior year. That growing, backlogged caseload is part of why witness evidence prepared correctly the first time, sworn and filed in the right form, matters at every stage of a contested custody file. See our compilation of family law court statistics in Canada for the full breakdown.

As licensed PSISA investigators, our approach to witness statements in a custody file is to interview willing witnesses and record what they observed in their own words. We do not coach, script, or pressure a witness, and we have no authority to compel anyone to speak with us. A witness who won’t participate voluntarily can only be formally required to testify through a court-issued summons arranged by counsel. The resulting account is put into a form a family lawyer can move toward a sworn Form 14A affidavit.

To discuss whether documenting witness evidence fits your custody case, call +1 (888) 680-0036 or visit the child custody investigation service page. For background on the investigator behind this guide, see the about page.

This article provides general legal information, not legal advice. Consult a family lawyer about how these statutes apply to your specific situation.

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