Ariss v Ariss, 2011 ABQB 435

Court of Queen ’ s Bench of Alberta Citation: Ariss v Ariss, 2011 ABQB 435 Date: 20110706 Docket: 4803 155557 Registry: Edmonton Between: Darla Kim Ariss Plaintiff - and - Richard Todd Ariss Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by counsel for Ms. Ariss to unfile an Affidavit sworn on April 12, 2011 by Ms.

Ariss in support of an Interim Order for child support in the sum of $3,416 per month, and spousal support of $6,000 a month both commencing March 1, 2011 based on her husband’s million dollar plus recent line 150 income, and their multi-million dollar investment account. The Order removing the Affidavit from the Court file has been consented to by counsel for the husband. [ 2 ] This application raises the issue as to the circumstances, if any, when the Court should allow a party to withdraw a filed affidavit. In this case one party filed what could be considered an inflammatory Affidavit in

part in support of an application, which application was subsequently settled out of Court before it could be heard.

Analysis [3] Neither the Alberta Evidence Act, R.S.A. 2000, c. A-18 nor the Alberta Rules of Court establish specific guidance ordirection for withdrawing affidavits, however case law provides some authority on the subject matter. I conclude that I have thediscretion to allow a party to withdraw a filed Affidavit in certain circumstances. [4] In Boehringer Ingelheim (Canada) Ltd. v. Pharmacia Canada Inc., 2003 FCA 151 the Federal Court of Appeal dealt witha situation where one party wished to withdraw a filed affidavit and substitute another.

The Court held at paragraph 5 that suchsubstitution, which includes the withdraw, is at the Court’s discretion but the Federal Court of Appeal refused to interfere with theProthonotary’s decision not to allow the substitution. [5] Master Brine in the British Columbia case Gill v. Gill, 2004, BCSC 518 enumerated a number of factors which mayinfluence a Court’s decision on whether to exercise its discretion to allow the withdrawal of an affidavit as follows at paragraph 36:– In

summary, it appears that there is discretion in the court to order that affidavits filed in the court file may, upon application, bewithdrawn. Among the factors to be considered by the court upon such an application are the following: 1. Was the affidavit filed by mistake? 2. Has the affidavit been used, in the sense of having been before the court, during the course of considering an application? 3. Is there a pending application before the court for which a party has indicated it intends to rely upon the affidavit? 4.

Is the application to withdraw the affidavit made as a strategic or tactical decision to deny the other party access to relevantinformation or the ability to cross-examine the deponent? 5. Would the other party be prejudiced in any way by the withdrawal of the affidavit? 6. Are there policy considerations which would militate against a withdrawal of the affidavit? 7. Would the administration of justice be adversely affected by the withdrawal of the affidavit? [6] Some of these factors appear to carry more weight than others.

It is fairly clear that an affidavit may not be withdrawn if thepurpose of the withdrawal is to prevent the other party from cross-examining a witness: R.O.M. Construction v. Heeley (1982), (AB KB), 46 A.R. 366 (Q.B.). In addition, if the reasons for the withdrawal are tactical or would cause prejudice to theother party, then the withdrawal should not be allowed: Ominayak v. Lubicon Lake Indian Nation Election (Returning Officer) (2000), (FC), 185 F.T.R. 33 (Fed. T.D.), rev’d on other grounds (2000) 267 N.R. 96 (Fed. C.A.).

[ 7 ] If however on the other hand the administration of justice is brought in disrepute by not allowing the withdrawal of the affidavit, the Court may wish to consider exercising its discretion in favour of granting the application. See Gill v. Gill at paragraph 38 . [ 8 ] Based on the facts that I have been given, the Gill case appears to be quite similar to the present application. Gill concerned a matrimonial dispute where both parties had filed inflammatory affidavits in support of and against an application by one party.

Through counsel, the parties settled the matter that was the subject of the application and then applied to have the inflammatory affidavits withdrawn. The parties argued that keeping the affidavits on file would harm the goodwill generated by the agreement and could hamper efforts to resolve the remaining issues. Master Brine addressed these factors, and allowed the affidavits to be withdrawn for the following reasons at paragraphs 37 and 38:– 37 In the application before me the affidavits in question have not been "used" in the sense referred to above.

Neither is there currently a pending application before the court for which notice to rely upon the affidavits has been given. There are no apparent strategic or other inappropriate reasons for the request. There is clearly no prejudice to either party by the withdrawal as both parties consent to the relief sought. Finally, there can be no substantive policy reasons for denying the request.

To the extent that a court file might be considered a "public" record, a matrimonial file cannot be accessed by members of the public in any event - at least without a court order. 38 Here, it might also be argued that a denial of the order sought might result in bringing the administration of justice into disrepute. The submissions, which I accept, clearly indicate that the continued presence of the affidavits in the court file might adversely affect the ongoing settlement discussions between the parties.

Considering that one of the objects of the Court's Rules and procedures is to encourage the resolution of disputes, particularly in matrimonial actions, the court's discretion ought to be applied in such a way to encourage, as far as may be possible, that end. [ 9 ] However the Master’s analysis of the public policy factor may not be applicable to this case given that in Gill the matrimonial court file was not a public record because rule 60(41) of the British Columbia Supreme Court Rules in force at the time, prohibited the public from accessing matrimonial court files without leave of the Court. B.C.

Reg. 221/90 as repealed by C.C. Reg. 168/2009 There is no analogous provision in Alberta. Conclusion [ 10 ] There are policy reasons against allowing the Affidavit to be withdrawn, primarily not to allow someone to remove documents from a Court file which is a public record. There is also no evidence that refusing the withdrawal could or would create additional hostility between the parties so that there is no public policy reason to allow the Affidavit to be withdrawn.

In this particular case there is also no evidence that the Affidavit in question was mistakenly filed. [ 11 ] However in this case but there is also no evidence that the Affidavit had been used since the application had not yet been heard. Since the parties settled the matter, the application is no longer pending before the Court. The application to withdraw the Affidavit is not for any tactical purpose, or to prevent the other side from cross-examining the deponent.

There is no indication that any party will be prejudiced if the Affidavit is withdrawn, and both sides have consented to having the Affidavit withdrawn. [ 12 ] I have decided to allow the filed Affidavit to be withdrawn or unfiled in these particular circumstances, although the rather casual manner in which this application was applied for belies it’s serious nature in my respectful opinion. Heard on the 26 th day of May, 2011. Dated at the City of Edmonton, Alberta this 6 th day of July, 2011.

Donald Lee J.C.Q.B.A. Appearances: Shirley A. McNeilly, Q.C. and Monica Sabo, Student-At-Law Emery Jamieson LLP for the Plaintiff