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Can Embarrassing Affidavits Be Withdrawn from Family Court Files?

Can Embarrassing Affidavits Be Withdrawn from Family Court Files?

Family Law litigation involves certain well-defined procedures, including the need for parties to present their particular side of the story to the court in filed Affidavit form.    An interesting question arose in two decisions from western Canada, as to whether an inflammatory Affidavit can be withdrawn from the court file in some circumstances.

In the Alberta decision of Ariss v. Ariss, the wife brought a court Application to essentially withdraw her Affidavit filed in support of an interim orders for spousal and child support.    When the issues were eventually settled out-of-court by the parties’ lawyers, the wife sought an Order to remove what she considered to be an embarrassing Affidavit from the court file.  The husband consented, but the matter still had to go before the court for its permission.

The court considered whether it should allow the request.  First of all, it noted that the document had been filed, but it had never actually been placed before the court because the underlying Application concerning the parties had never proceeded.   Secondly, the wife was not asking to have the Affidavit withdrawn for strategic reasons related to the litigation.  Finally, the court noted that neither party would be prejudiced if the Affidavit was allowed to be withdrawn.   (On the other hand, it also noted that these kinds of withdrawal Applications are of a serious nature, and should not be brought routinely).  The court allowed the wife’s request.

In another case, this time from British Columbia, the court considered a similar Application.  In Gill v. Gill, the parties were in dispute over various issues relating to their children.   Both of them had filed inflammatory Affidavits in support of their respective positions.   When they later settled, they applied to the court to have those Affidavits withdrawn.

Once again, the court considered the various factors that should go into the determination of whether such Application should be allowed. It summarized the relevant questions to be whether:

• the Affidavit was filed by mistake;

• it has been placed before the court as part of the process of considering an Application;

• there is another pending Application before the court , for which one of the spouses intended to reply upon the same Affidavit;

• the Application to withdraw the Affidavit was made for a strategic or tactical decision, in order to deny the other spouse access to relevant information, or in order to deny him or her the right to cross-examine the person who swore the Affidavit;

• the other spouse would be prejudiced in any manner, by the withdrawal of the Affidavit if granted;

• there are policy considerations that would militate against the Affidavit’s withdrawal;

• the administration of justice would be adversely affected if the Affidavit was permitted to be withdrawn.

The court observed that the most persuasive of these factors was whether the spouse was making the withdrawal request for strategic reasons, and whether there would prejudice to the other spouse.   Policy reasons were also important, as was the general desire to not remove documents that are part of the public record.  In the Gill case before it, and after considering all these factors, the court allowed the Affidavits to be withdrawn.

For the full text of the decisions, see:

Ariss v. Ariss, 2011 ABQB 435   http://canlii.ca/t/fm6f2

Gill v. Gill, 2004 BCSC 518

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com