The Affidavit “Wars” Continue

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One of the banes of family law is the never-ending stream of affidavits that are submitted, inviting reply, counter-reply and rejoinder, sometimes well-meaning, but often an exercise in irrelevant excess.

That is what Madam Justice Choi was presented with in the case of Quigg v. Quigg 2019 BCSC 628, however, what made the Quigg case most unusual was a previous order of Judge Choi’s where she ruled that neither party could file additional affidavits.

Nonetheless, the Claimant, Ms. Quigg, sought to have three additional affidavits admitted, including one of her counsel’s legal assistant, with 113 pages; a second affidavit from the same legal assistant, with 295 pages; and the third, an affidavit of Ms. Quigg, numbering 31 pages.

The Court considered six cases presented by counsel but distinguished all of them. Clearly the fact that an order had been made specifically disallowing additional affidavits made it difficult to find a case on point. However, the Court mentioned a decision of Mr. Justice Barrow where he held that “the court should exercise its discretion to admit late-filed affidavits sparingly, and only in clearly meritorious cases, where to exclude the evidence would result in a “substantial injustice”.”

Proffering a three-part test, the Judge refused to admit the affidavits. She found that:

1. Admitting the affidavits would result in prejudice to Mr. Quigg, who acting in person, had completed his arguments over the a period of six days. The Court noted the delay that would inure were he to be obliged to respond to three additional affidavits. The Court also noted that 25 volumes of affidavits were already before the court.

2. The inadmissibility of the affidavits would not prevent the Court from making a reasoned determination on the merits.The Court endorsed Mr. Quigg’s position that certain of the affidavits were “boosters”, filed to shore up previous evidence, after hearing Mr. Quigg’s submissions. Judge Choi remarked that at some point the court must say “enough is enough”.

3. The interests of justice do not weigh in favour of admissibility. The Court held that given the previous order barring additional affidavits the threshold to admit further affidavits was very high, and that no injustice would occur by ruling them inadmissible.

Lawdiva aka Georgialee Lang

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