BLS v JJC, 2023 ABKB 573

Court of King’s Bench of Alberta Citation: BLS v JJC, 2023 ABKB 573 Date: 20231012 Docket: 4803 196538 Registry: Edmonton Between: BLS Plaintiff (Respondent) - and - JJC Defendant (Applicant) _______________________________________________________ Endorsement of the Honourable Justice Douglas R. Mah _______________________________________________________ A. Background [ 1 ] The father JJC makes an application to admit electronic evidence and Third-Party affidavits in an upcoming parenting application to be heard as a Special Application. The mother BLS opposes the admission of such evidence.

I heard the Application in Family Law Chambers on October 3, 2023 and indicated I would reserve and issue this Endorsement. [ 2 ] The Application is governed by para 56 of Family Law Practice Note 2 (PN 2) which provides that a party seeking to admit

electronic evidence and/or additional affidavits not contemplated in para 51 for the purposes of a Family Law Special Application must obtain leave from either a Justice in regular Family Law Chambers or the Justice assigned to hear the Special Application if there is one. The Special Application has not been scheduled yet so there is no assigned Justice.

Justice Rothwell, sitting in Family Docket Court on August 24, 2023 directed the Application to Family Law Chambers on October 3, 2023. [ 3 ] I note parenthetically that para 51 does speak to the filing of Third-Party affidavits but, in context, the Third Parties referred to are those withstanding before the Court. The proposed Third Parties in this case have no such standing.

Thus, para 56 applies. [ 4 ] JJC seeks to vary the current Parenting Order which I understand restricts him to supervised parenting following an incident on March 27, 2022 in which he was charged with criminal assault of the child in question. The criminal charge is now resolved. [ 5 ] The electronic evidence consists of what JJC describes as a video recording of a phone conversation between the parties taking place on April 24, 2021. The content and tenor of the conversation are described in considerable detail in para 2 of JJC’s September 11, 2023 Affidavit.

JJC says that the aggressive and combative nature of BLS’s dealings with JJC on the issue of his parenting, as revealed in the recording, belie her claims in her affidavit that she has “never sought to obstruct or avoid forming a parenting plan with [JJC]”, that she was the one uncomfortable with his volatile demeanor towards her , and that BLS “has always made best efforts to ensure [the child] is shielded from ongoing conflict” between the parents.

JJC says the recording clearly shows that the child was in the room while BLS was berating him during the conversation. [ 6 ] The introduction of the recording into evidence is intended to impugn BLS’s credibility with respect to those particular statements in her Affidavit. [ 7 ] The Third-Party affidavits sought to be entered come from JJC’s two parents, his current partner, a married couple who are friends with both parties, and two other friends of JJC, all of whom, give favorable accounts of him as a father and, in most cases, unfavorable accounts of BLS. [ 8 ] BLS says the recording was made surreptitiously and should not be admitted on principle: AJU v GSU , 2015 ABQB 6 at paras 167- 168 .

She argues (through counsel) that the proposed Third-Party affidavit evidence is unreliable because it is biased and rife with hearsay, speculation and out-of-date information, and furthermore is a form of oath-helping. [ 9 ] For the reasons that follow, I conclude that the electronic evidence and Third-Party affidavits should not be admitted. B. The Evidentiary Process in Special Applications [ 10 ] Special applications are intended as a

summary process to enable somewhat expedient adjudication of discrete questions in legal disputes. None could be more important than the determination of parenting, which invariably involves the best interests of a child. Nonetheless, most parenting decisions from Special Applications are still interim and are subject to a final determination at trial. For reasons of expediency, the general rule is that the Court will only receive affidavit evidence from the parties themselves, restricted in scope and number (see PN 2, paras 26, 34 & 35). In exceptional circumstances, the Court may permit oral evidence: para 37.

No application for receipt of oral evidence has been made in this case. [ 11 ] In most if not all contested parenting cases, the litigants attack the parenting ability and moral character of the other parent. Each says the child or children would be better off spending more time with him or her than the other. Often, one parent will say that the other attempts to alienate or influence the child/children against the other parent. The present case falls within this description. [ 12 ] Courts are well equipped to hear and decide parenting disputes within the confines of the evidence normally prescribed in PN 2.

JJC has not made a compelling or any case as to why there are circumstances that require departure from the normal prescription by allowing electronic evidence or Third-Party affidavits. [ 13 ] If anything, there is a significant risk of prejudice to the Special Application process. A Special Application is not a trial. It is meant to be conducted and concluded within either an hour or two-and-half hours. In complex cases, a full day may be required. The present case is not a complex case. It is the typical type of parenting dispute that the Court routinely decides in Special Applications.

As I explain below, the expediency that the

summary Special Application process promotes might well be compromised if evidence of the type proposed in this application is routinely admitted. C. The Recording [ 14 ] It is not illegal in Canada to record a conversation without the consent of the other person so long as one person consents: Criminal Code , section 184(2) . However, I feel it safe to say that it is not acceptable in almost every social context for one person to surreptitiously record a conversation.

Imagine how hard it would be for parents engaged in a parenting arrangement to interact with one another on a daily basis if they constantly had to be on guard about being recorded. [ 15 ] Justice Pentelechuk, now on the Court of Appeal, commented on this type of evidence in AJU at para 167 : If we accept that acrimony between parents and the adversarial process is damaging to children, admitting such evidence under the guise it is relevant to determining a child’s best interest seems counterintuitive. Admitting such evidence encourages more.

Not only does it risk rewarding the parent who possesses a greater acumen for documenting and recording, but it prolongs the litigation and increases expense with ever more voluminous affidavits and exhibits. [ 16 ] I realize there are cases in Canada, including Mazur v Corr , 2004 ABQB 752 at para 16 , that countenance admission of surreptitious recordings so long as the opposing side has the opportunity to review the evidence ahead of time or, as in Scarlett v

Farrell , 2014 ONCJ 517 at para 31 , the evidence has sufficient probative value. [ 17 ] The Court’s evidentiary gatekeeping role in any proceeding requires the Court to weigh the probative value of otherwise admissible evidence against its prejudicial effect. Prejudicial effect does not only relate to a party’s interest but also to the administration of justice itself and its efficacy and efficiency. Here, the probative value of this evidence is too limited to justify admission. [ 18 ] The conversation in question took place 2 ½ years ago.

In context, it clearly took place prior to BLS retaining legal counsel and being advised of her rights as well as her obligations. It also took place prior to the assault incident that gave rise to the supervised parenting. By the time it is considered in the actual parenting application, it will be nearly 3 years old. It may well be reflective of BLS’s demeanor on a specific date and time but is not probative of BLS’s overall and continuing attitude and approach to parenting by JJC. It is a single recording of a single incident.

Obviously, things have happened since that conversation took place and its relevance is limited. [ 19 ] Further, JJC is not prevented from making evidentiary assertions as to BLS’s demeanor when dealing with him with respect to parenting, just in the way he did in his September 11, 2023 Affidavit. Nor is BLS prevented from giving an explanation for her reluctance to enter into a parenting plan at the time, just as she did in her Affidavit. [ 20 ] Another problem with admitting the recording itself has to do with proving its reliability.

Counsel for BLS took the position that the encounter may have been staged by JJC or that the recording is incomplete and misleading. Even if the recording were admitted, it should still be tested and scrutinized for reliability. [ 21 ] In St Croix v St Croix , 2017 ABQB 490 at para 21 , Justice Feehan (also now JA), echoing the sentiments of Justice Pentelechuk quoted above from AJU , determined that admissibility of a surreptitious recording should be determined at trial on a voir dire .

Since he had earlier ordered a police witness to attend the hearing in person, Justice Feehan was obviously dealing with an oral hearing. [ 22 ] Here, there is no trial yet and there has been no application for an oral hearing.

The holding of a voir dire during a Special Application that is restricted to affidavit evidence is untenable, would consume too much time, introduce unnecessary complications, and distract from the main question, which is the best interests of the child. [ 23 ] Whether this conversation took place, the content and tone of the conversation and the demeanor of the parties during the conversation, which took place 2 ½ years ago, is of limited relevance and, given its intended use as described by JJC, at best has only secondary materiality. [1] The risk of prejudice to parenting litigation in general as described in AJU and to the Special Application process itself as a means to decide parenting issues in a somewhat expedient manner outweighs the probative value which is marginal at best. [ 24 ] As St.

Croix and AJU state, surreptitious recordings should only be admitted in rare cases. JJC has not shown why this is a rare case. Moreover, the requirements of formal proof of reliability of a digital recording might well hijack the Special Application at the expense of the parenting issue. I exercise discretion under para 56 of PN 2 to deny leave to JJC to admit this electronic evidence. D. The Third Party Affidavits [ 25 ] I will summarize what each affidavit says: • JJC’s mother deposes that in her observations JJC has been and continues to be a loving and attentive father.

She provides JJC’s version of the assault incident and says the child’s injuries were minimal. She suggests that BLS is a deficient parent who is indifferent to the child’s medical needs. She reports that the child misses her father and wants more time with him. Her own role as a grandparent is minimized even though she “has never been found guilty of anything.” She believes that BLS is taking steps to minimize JJC’s role in the child’s life. JJC’s mother observes that JJC is intimidated by BLS and she “dread[s] to think what is happening with” the child.

JJC’s mother provides a positive opinion of JJC’s parenting and how merely supervised visits are harmful to everyone, including the child. • JJC’s father reported that he overheard the child tell JJC that she had been in an hour-long car ride with “baba” in the front seat and no child seat. He questions BLS’s parenting ability. He says it is inappropriate for the child to still be in diapers at night at 4 ½ years of age and that JJC would night-train her if he had more parenting time. He opines that the assault charge was motivated by revenge on BLS’s part and to gain advantage in the parenting dispute.

He opines that JJC is a good parent who should have primary care of the child. • Both grandparents lament that they do not have enough time with the child since they must defer to JJC during his limited parenting time. • The male in the married couple provides a positive character reference for JJC and opines that he is “the model of healthy parenting”. He suggested that BLS historically had an “unpredictable”

schedule because of a penchant for spontaneously engaging in leisure and social activities, leaving the child in JJC’s care. • The female in the married couple also gives JJC a positive character reference. She recalls a specific instance on July 1, 2020 during a social occasion at the home of JJC and BLS when they were still together. BLS was socializing while JJC was attentive to their child. She opines that JJC and the child “need each other” and that JJC is “a good man and a wonderful father.” • JJC’s current partner speaks positively of JJC as a person and a father, who always puts his child first.

She also observed that historically, during frequent social gatherings, BLS “drank and socialized” while JJC was the parent attending to the child’s needs. She observes that BLS “has routinely used their daughter as a tool to threaten and punish [JJC] for leaving the marriage.” She believes that BLS has hacked into JJC’s email. She provides her explanation of the criminal charge and says she believes the separation from her

father has caused the child more harm than the assault incident. The deponent says that she considers herself “a fairly good judge of parenting skills” and that JJC is “a fantastic and devoted father.” • The final deponent says that she is happy to provide a reference to JJC and believes that JJC should receive the parenting Order that he seeks from the Court and that it would be in the child’s bests interests.

She speaks positively of JJC as a father and in her experience JJC has always been “calm and patient” with the child. [ 26 ] JJC feels that these affiants offer “alternative perspectives” on the parenting issue.

In Court, he argued that at least three of them, given their background in the education system, are quasi -parenting experts of a sort and their input should be given great weight. [ 27 ] BLS’s position is that these affidavits, individually and cumulatively, have little probative value for the following reasons: • The affidavits from JJC’s parents are replete with hearsay (some of it from the child) and speculation. • The affidavit from JJC’s current partner is suspect because it is not independent, contains hearsay and conjecture and does not disclose the nature of the deponent’s relationship with JJC.

BLS points out that JJC began his liaison with the deponent while he was still in the relationship with BLS, which contributed significantly to its breakdown. • As to the affidavits from the married couple, BLS says she did not interact frequently with them and not at all since the separation. They are unable to shed any recent light whatsoever on BLS’s parenting of the child. • Counsel for BLS says he would be behooved to cross-examine all of the deponents on their affidavits.

If the affidavits were admitted, he would also be behooved to line up numerous deponents of his own to rebut JJC’s deponents and provide favourable evidence for BLS. • The affidavits are nothing more than a form of oath-helping. [ 28 ] The admissibility of these affidavits depends on the same legal test of probative value versus prejudicial effect. I conclude that the probative value of admission of these Third-Party affidavits does not outweigh prejudicial effect and therefore they should not be admitted. [ 29 ] I have no reason to doubt the sincerity of belief of any of the deponents.

However, I would not expect the family and friends of a litigant in a parenting dispute to express anything other than a positive impression of the person they are supporting. BLS could do the same thing. The Court should not decide a parenting case based on which party can recruit the greatest number of supporters of oneself or detractors of the other, particularly in a Special Application. [ 30 ] The introduction of these affidavits, the cross-examination of their deponents and the infusion of rebuttal affidavits from yet further deponents prolong and complicate the process and make it more expensive.

It forces the Court to inquire into whether certain things that are said to have occurred before the parties even separated are accurately recounted in the affidavits. It requires the Court to make credibility and reliability findings on each of the deponents, whether they are motivated by bias or animus and whether they actually have a basis or foundation to say the things that they did.

There is criticism of BLS’s parenting ability (some of it in the form of innuendo) which, if admitted as evidence, means she would have no choice but to challenge and rebut that evidence. [ 31 ] If these affidavits were admitted, I would be required in the interest of fairness and a level playing field to permit BLS to submit a series of Counter-Third Party affidavits. [ 32 ] Two of the affiants purport to know what the child is thinking and several purport to know BLS’s motivations in adopting the parenting position that she has. This evidence is speculative.

Observations of BLS’s parenting of the child during social events before the parties separated or what took place on July 1, 2020 have limited, if any, relevance. [ 33 ] Evidence about events where the deponent was not present but only heard about from another person, without more, is inadmissible hearsay.

There is additional concern about whether the event is accurately reported when the hearsay originates from a 4 ½ year old. [ 34 ] Some of the affidavits contain other speculation: that the child must be terrorized in BLS’s home based on JJC’s reaction to BLS’s intimidation tactics; that the criminal charge against JJC was motivated by malice and BLS’s desire to control JJC; that the restriction on JJC’s parenting has caused the child more harm than the assault incident; engaging in a line of reasoning that leads the deponent to conclude that BLS must have hacked into JJC’s email, and is therefore an unscrupulous person.

None of this has probative value. It is not evidence. At best, some of it is argument. [ 35 ] There are aspects of “oath-helping” in some of the affidavits. The rule against oath-helping is a general rule of admissibility that prohibits parties from calling evidence solely to bolster the credibility of their other witness evidence: Paciocco, Paciocco & Stuesser , pp 244-247, 624-625. The criminal charge that arose on March 27, 2022 is a matter that JJC must explain away in his parenting application.

Two of the affiants attempt to justify the incident even though, clearly, they were not present when it happened and are merely reiterating what JJC told them. That is repetition, not corroboration.

A statement is either true or false; repeating it through different people does not make it truer. [ 36 ] Finally, the deponents in these affidavits purport to give opinion evidence on matters to be determined by the Court: the ability of either party to parent, the superiority or inferiority of one parent over the other, how much parenting time each parent should have, and even in one case, how the Order sought by JJC is in the best’s interests of the child.

As Pentelechuk, J noted in AJU at para 172 : This type of evidence is usually inadmissible and serves only to obfuscate the admissible and probative evidence which relates to the ultimate question.

[ 37 ] I do not question the credentials that some of the affiants have as professional educators but their opinion evidence as to which parent should have what form of parenting falls within the above dictum . [ 38 ] As noted above, the evidence contained in these various affidavits has limited probative value that certainly does not outweigh the risk to the proper administration of justice in this case. [ 39 ] For these reasons, I again exercise discretion under para 56 of PN 2 to deny leave to admit these Third-Party affidavits. E.

Ruling [ 40 ] JJC’s Application is dismissed. [ 41 ] Costs may be spoken to within 15 days of this Endorsement by written submission in letter form not to exceed one single- spaced page. Heard on the 3 rd day of October, 2023. Dated at the City of Edmonton, Alberta this 12 th day of October, 2023. Douglas R. Mah J.C.K.B.A. Appearances: JJC, Applicant, for the Self-Represented Litigant Barry M. King, Strathcona Law Group LLP for the Respondent