AFFIDAVIT EVIDENCE IN CHAMBER APPLICATIONS

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1 ".\ AFFDAVT EVDENCE N CHAMBER APPLCATONS " ". ".: "...' - -.' :..." "..... '.". "-'" ",'.".. -.,',- ',..'.:...,', - '.:... '. :"" ' Thes~ materia,lswere pr~paredby Jeffrey Brick ' of Kanuka Thuringer.awfirm Regina, Saskatchewan'for" the Saskatchewan Legal Education Society nc. Using the New FamilyLaw Rules as Survival Tools seminar; November

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3 AFFDAVT EVDENCE N CHAMBER APPLCATONS ntroduction: The Queen's Bench Rules and The Rules of Evidence govem the preparation and presentation of affidavit evidence in Chamber applications. The introduction of the new Queen's Bench Rules for family law proceedings in January of 2001 has brought a renewed focus on the proper preparation of affidavit evidence in family law proceedings. Anecdotally it has been the writer's experience that since the introduction of the new family law rules lawyers have increasingly challenged the appropriateness of affidavit evidence presented in family law Chamber applications and Judges have been more willing to award costs against parties who have presented inappropriate affidavit evidence. A checklist is provided at the end of this paper for the purpose of assisting in the preparation of affidavit evidence. Procedural Requirements: n family law proceedings the procedural requirements for the preparation and presentation of affidavit evidence is set out in Rule 603 of The Queen's Bench Rules which reads as follows: "603(1) An affidavit shall be confined to the statement of facts within the personal knowledge of the person signing the affidavit, except where this rule provides otherwise. (2) An affidavit shall not contain argument or speculation. (3) An affidavit may, in special circumstances, contain information that the person learned from someone else if: (a) the motion on which the affidavit will be used is for an interim order, or for a matter which will not determine the final outcome of the family law proceeding; and (b) the source of the information is identified by name, the affidavit states that the person signing it believes the information is true, and the circumstances that justify the use ofinformation learned from someone else are stated." (4) Where an affidavit does not comply with this rule, the court may: (a) strike out all or part of that affidavit; and (b) award costs against the party filing the affidavit or that party's lawyer. (5) Where an affidavit contains material that is irrelevant or that may delay the trial or make it difficult to have a fair trial, or that is unnecessary or an abuse of the courtprocess, the court may, on motion by a partyor on its own motion:

4 -2- (a) strike out all or part of that affidavit; and (b) award costs against the party filing the affidavit to be paid as between solicitor and client. (6) Where an affidavit or part of an affidavit has been struck under this rule, an opposing party who has filed an affidavit in response to the offending material may be awarded costs of filing that affidavit to be paid as between solicitor and client." * Note: See also Rules 319 and 327 of The Queen's Bench Rules. Rule 603 renders redundant Rules 319 and 327 in family law matters. The following procedural points can be highlighted in Rule 603: 1. As a general rule an affidavit shall be confined to statements of facts within the personal knowledge of the person signing the affidavit; 2. An affidavit shall not contain argument or speculation; 3. An affidavit may contain information that is learned from someone else in the following special circumstances: (a) the motion in which the affidavit will be used is for an interim order, or for a matterwhich will not determine the final outcomeofthe proceeding; (b) the source ofthe information is identified by name, the affidavit states that the person signing it believes the information to be true and the circumstances that justify the use of the information from someone else are stated. Rule 603(3) of The Queen's Bench Rules permits evidence to be presented based on information and belief in an interlocutory application. Accordingly, before preparing an affidavit that contains evidence based on information and belief you must determine whether the proceeding is interlocutory. The general rule is that if the judgment or order disposes of the rights of the parties then the matter is considered final and consequently affidavits tendered in such proceedings should not contain evidence based on information and belief. n family law proceedings, the following applications have been treated as final rather than interlocutory proceedings: (a) variation applications; (b) application to suspend or cancel access; (c) an order allowing a child to be removed from the jurisdiction.

5 - 3 - ) Admissibility of Evidence Based on nformation and Belief: Even where a proceeding is interlocutory, and therefore evidence based on information and belief is potentially admissible, Rule 603(3) sets out additional requirements that must be met before the evidence is admitted: (a) the source of the information is identified by name; (b) the person signing the affidavit states that they believe the information to be true; (c) the circumstances justifying the use of the information from someone else is stated. Therefore, when a deponent relies on information from other sources, he/she should state why the individual with personal knowledge could not swear an affidavit. The courts have rejected the following circumstances as justifying the use of information from someone else: (a) urgency; (b) demands of time; (c) cost. Circumstances that may justify the use of information from someone else include: (a) evidence from minor children. The practice of the court has been to allow evidence from children to be adduced through other individuals (usually parents) in orderto avoid having the children give evidence directly in the proceedings; (b) refusal of a witness to sign an affidavit (note that a witness cannot be compelled to swear an affidavit); (b) physical or geographic factors that barred obtaining an affidavit from the individual with personal knowledge. The precaution around using evidence based on information and belief is that the use of this evidence insulates the person with personal knowledge of the facts from crossexamination. Exhibits to Affidavits: t is not uncommon to see letters and other documents attached to affidavits. These documents are often not authored by the deponent of the affidavit. (For example, letters written by the deponent's lawyer or the lawyer on the opposite side ofthe file).

6 - 4 - Marking a document as an exhibit to an affidavit simply identifies the document. This procedure does not prove the contents of the document or its authenticity. The practice of attaching documents to an affidavit not authored by the deponent is an attempt to use information from someone else other than a deponent. The requirements of Rule 603(3) of The Queen's Bench Rules must be met. (see heading: Admissibility ofevidence Based on nformation and Belief) f the document being exhibited to the affidavit meets the requirements of Rule 603(3) and is being adduced as evidence based on information and belief, the deponent should specifically swear to the truth of the facts contained in the document being attached to the affidavit. n family law proceedings it is not uncommon to see a report prepared by physicians, psychologists and social workers attached to affidavits as exhibits. These reports generally contain opinions of these professionals. The problem with attaching these reports as exhibits to affidavits is twofold: 1. The requirements of Rule 603(3) and in particular that circumstances exist that justify the professional who prepared the report not swearing their own affidavit with their report attached must be met; 2. Opinion evidence is only admissible where offered by properly qualified individuals with relevant experience to give the opinion. t is unlikely that parties to a family law proceeding have the expertise to give the opinion. Disclosure from Counselling and Therapy Professionals: Caution should be exercised when considering whether to adduce evidence of counselling and therapy taken by family members involved in a family breakdown. t may be that such information may be protected by privilege and therefore is not properly adduced into evidence. The following cases offer guidance on this issue: Smith v. Smith (1998), 159 Sask. R. 40 (Q.B.) Smith v. Smith Judgment of Mcntyre, J., dated March 15,2000 Slavutych v. Baker (1975),55 D.L.R. (3d) 244 (S.C.C.)

7 ') Preparing Affidavits in Reply: Rule 602(8) governs what information may be contained in a reply affidavit. Rule 602(8) reads as follows: "602(8) The party bringing the motion may then serve an affidavit replying only to any new matters raised by the opposite party, and file the affidavit with proof of service at least two clear days before the date set for hearing the motion." Rule 602(8) matters raised in the other side's affidavit(s). limits the information in a reply affidavit to replying only to new n Johnson v. McAlister, a decision of Madam Justice Smith dated March 2,2001 the court outlined the type of evidence that is not permissible in a reply affidavit: 1. Repeating or expanding on matters already addressed in the applicant's affidavit; 2. The applicant denying the respondent's denial of the applicant's initial allegations; 3. Raising trivial and non-material matters. This often consists of parties complaining about what they perceive to be annoying conduct of the opposite party when he conduct is not material to the issues raised on the application. Striking of Affidavits: Affidavits that do not comply with Rule 603 may be struck and the court may award costs against the party or party's lawyer who filed the offending affidavit.

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9 AFFDAVT CHECKLST The following checklist may be of assistance when preparing affidavits and when examining affidavits from opposing parties: 1. s the application interlocutory? Affidavits in final applications should not contain statements based on information and belief. The following applications have been held to be final applications: variation applications; application to suspend or cancel access; an order allowing a party to remove a child from the jurisdiction. 2. f an affidavit based on information and belief is admissible has the deponent: identified the source of the information by name; stated they believe the information is true; and set out the circumstances that justify the use of the information learned from someone else. Consider the following circumstances: circumstances of urgency, demands of time and cost may not be sufficient circumstances; evidence from children is admissible on the basis of information and belief; evidence from an individual who refuses to sign an affidavit may be admissible on the basis ofinformation and belief; physical or geographical limitations may be a sufficient basis for adducing evidence on information and belief. 3. When attaching a document to an affidavit consider the following: if the document is authored by the deponent, have the deponent state they are swearing to the truth ofthe facts contained in the document; ifthe deponent is not the author ofthe document: (i) the deponent must identify the source of the information by name; (ii) state that they believe the information in the statement to be true;

10 - 2- (iii) state the circumstances that justify the use of the document authored by someone else (in other words explain why the author of the document is unable to swear an affidavit). Consider whether the document contains opinion evidence. f the document does contain opinion, it is likely inadmissible and will not be received by the court for the truth ofits contents. 4. f a deponent is giving opinion evidence ensure that the deponent properly sets out their qualifications and experiences which qualifies them to give the opinion. 5. Consider whether there are issues of privilege if you are attempting to adduce evidence from counsellors or therapists. 6. Consider whether the affidavit contains improper or inadmissible information such as speculation, argument, conclusions, opinions and irrelevant or scandalous information. a matter is argumentative when it contains, in addition to a statement of fact, reasoning or comment on how those facts bear on the disputed matter; a matter is irrelevant when it has no bearing on the issues ofthe application; a matter is scandalous when information prejudices the opposite party and is irrelevant to the issues of the application; 7. When preparing a reply affidavit ensure that the information is limited to replying to new allegations raised bythe affidavit(s) ofthe opposing party.