Burden v. Burden, 2012 NSSC 214

SUPREME COURT OF NOVA SCOTIA Citation: Burden v. Burden, 2012 NSSC 214 Date: 20120606 Docket: No. 1207-003681

(079419) Registry: Truro Between: Krista Lynne Burden Petitioner v. George Manuel Burden Respondent Judge: The Honourable Justice Michael J. Wood Heard: Motion By Correspondence Final Written Submissions: June 1, 2012 Written Decision: June 6, 2012 Counsel: Janice E. Beaton, Q.C., for the Petitioner Deborah I. Conrad, for the Respondent By the Court :

[ 1 ] On Friday, June 8, 2012, I will deal with the following motions: 1. The motion of Krista Lynne Burden for interim spousal and child support. 2. The motion of George Manuel Burden for interim custody and access. [ 2 ] Ms. Burden has made a motion to strike out portions of the affidavit evidence filed on behalf of Dr. Burden. I have received written submissions from counsel for Ms. Burden in support of this motion, as well as written submissions in opposition from counsel for Dr. Burden.

During the pre-hearing conference call held on May 30, 2012, I advised the parties that I would decide the motion based upon the written submissions and provide a decision in advance of the June 8, 2012 hearing. This is my decision. [ 3 ] The position of Ms. Burden is that the impugned evidence is either irrelevant to the motions, hearsay, opinion or vexatious. The position of Dr.

Burden is that all of the affidavit evidence is relevant to the issues raised by the upcoming motions. [ 4 ] I have had the benefit of reviewing all of the motion documents filed by both parties, as well as discussing the motion issues with counsel in the pre-hearing telephone conference. It is clear from this process that the matters truly in issue between the parties are relatively limited. [ 5 ] With respect to interim child support, the question is whether there should be additional income attributed to Dr.

Burden as a result of the financial circumstances of his professional corporation. [ 6 ] The request for interim spousal support raises issues of both entitlement and quantum. A significant point from Dr. Burden’s perspective is the existence of a Cohabitation Agreement which was signed by the parties in 1997, and includes a mutual release of any future claims for spousal support. [ 7 ] The parties have agreed on most aspects of Dr. Burden’s motion for interim custody and access.

The issues to be resolved at the hearing relate to limitations on discussion of certain legal issues with the parties’ daughter and the requirement for advance notice if either parent wishes to attend any of her activities. [ 8 ] In light of the relatively narrow scope of the issues at play in the June 8 hearing, I will review the specific affidavit evidence which is challenged by Ms. Burden. AFFIDAVIT OF GEORGE BURDEN, sworn on April 20, 2012 [ 9 ] A portion of para. 42 is challenged on the basis of relevance. It describes Dr. Burden’s income from writing articles and speaking engagements. Dr.

Burden deposes that the income earned is minimal and is usually in the form of travel perks and not cash. He goes on to provide examples of some of the articles written and some of the trips taken. It is the particulars of articles written and trips taken which Ms. Burden says are irrelevant. In my view, this information is of marginal relevance; however, it is not otherwise scandalous or vexatious and, therefore, I will not order that it be struck. [ 10 ] In para. 55, Dr. Burden describes lending money for the benefit of other members of Ms. Burden’s family.

He goes on to describe the personal circumstances of those individuals which led to the need for these funds. These comments are challenged as being both irrelevant and inflammatory. I agree that this information is not relevant to the matters in issue on the interim motions, and includes confidential personal information concerning family members of Ms. Burden. I conclude that everything after the third sentence in para. 55 of Dr. Burden’s affidavit should be struck.

[ 11 ] In para. 58 of his affidavit, Dr. Burden alleges that Ms. Burden reported mistreatment by her former husband and describes what she allegedly did as a result. I agree with counsel for Ms. Burden that this is irrelevant and inflammatory, and should be struck out. [ 12 ] Paragraph 59 of Dr. Burden’s affidavit refers to his reaction when Ms. Burden was involved in a disagreement with her son. This is not relevant to the interim motions and I would strike that paragraph from his affidavit. AFFIDAVIT OF KAREN ALEXANDREA CARROLL - Sworn on April 20, 2012 [ 13 ] Ms. Carroll is a neighbour of the parties.

In her affidavit she describes several discussions with Ms. Burden concerning a relative of Ms. Burden who has made allegations of inappropriate conduct against Dr. Burden. The affidavit also expresses her opinion concerning the relationship between the parties and how she perceived Ms. Burden was treating Dr. Burden. The affidavit concludes with the following paragraph: 27. I make this Affidavit in support of George. I trust George implicitly. He has been a friend for years and I cannot stand by and watch his life and career being destroyed by Krista. [ 14 ] It is clear from the affidavit that Ms.

Carroll has a bias in favour of Dr. Burden. It contains inadmissible opinion on a range of subjects, including the relationship between Dr. and Ms. Burden. It comments extensively on the individual who has made allegations of inappropriate conduct on the part of Dr. Burden, which comments seem to be directed to undermining that individual’s credibility. Whether Dr. Burden engaged in such behaviour will be dealt with in other proceedings. That issue is simply not relevant to the matters which have to be decided at the June 8 hearing. [ 15 ] I am satisfied that there is nothing in Ms.

Carroll’s affidavit which should form part of the record underlying the interim motions, and for that reason I would strike the affidavit in its entirety. AFFIDAVIT OF RICHARD A. PORTER - Sworn on April 20, 2012 [ 16 ] Mr. Porter is the former spouse of Ms. Burden. His affidavit describes how they met and when they were married. It describes the breakdown of their marriage and set out allegations that Ms. Burden had made about his treatment of her. Mr. Porter’s affidavit also provides his opinion concerning the personal circumstances of Ms.

Burden’s relative who has complained about inappropriate conduct on the part of Dr. Burden. He gives his opinion about whether Dr. Burden would mistreat children. [ 17 ] Much of the affidavit evidence of Mr. Porter focuses on whether past allegations made by Ms. Burden against him had any merit. It also includes Mr. Porter’s opinion with respect to Dr. Burden and his reputation. In my view, none of the information in the affidavit is relevant to the issues in the June 8 hearing and I would strike it out in its entirety. AFFIDAVIT OF YVONNE R. LaHAYE, Q.C. - Sworn on April 23, 2012 [ 18 ] Ms.

LaHaye is a lawyer practicing family law and a personal friend of Dr. Burden. The affidavit indicates that she assisted Dr. Burden in negotiating the co-habitation agreement. She also describes medical assistance which he provided to her and her daughter. [ 19 ] There is no dispute that both parties had legal counsel in negotiating the cohabitation agreement. The agreement, which is attached as an exhibit to the affidavit of Dr. Burden, contains certificates of independent legal advice with respect to both parties. Ms. LaHaye’s affidavit evidence does not add any new factual information.

[ 20 ] Ms. LaHaye’s comments concerning assistance and treatment provided by Dr. Burden have nothing to do with the support or access issues to be dealt with on June 8. I would strike this affidavit in its entirety. CONCLUSION [ 21 ] For the reasons outlined above, I have granted Ms. Burden substantially all of the relief which she was seeking. I have struck out the affidavits of Ms. Carroll, Mr. Porter and Ms. LaHaye and portions of the affidavit of Dr. Burden.

For purposes of the hearing on June 8, I will ignore these portions of the affidavit evidence. [ 22 ] With respect to the Carroll, Porter and LaHaye affidavits I will apply Civil Procedure Rule 39.04(4) and direct the prothonotary to remove them from the court file and maintain them, for the record, in a sealed envelope kept separate from the file. [ 23 ] The portions of Dr.

Burden’s affidavit which have been struck out will be annotated accordingly on the copy of the affidavit in the court file. [ 24 ] Any costs associated with this motion to strike will be dealt with along with the costs arising out of the June 8 hearing. _______________________________ Wood, J.