SUPERIOR COURT OF JUSTICE - ONTARIO

CITATIO N : Oliver v. Oliver, 2012 ONSC 718
OSHAWA COURT FILE NO.: FC-08-1689
DATE: 2012-04-05

RE: Iain Oliver, Executor for the Estate of Lawrence Joseph Oliver, and Margaret Anne Oliver

BEFORE: Nelson J.

COUNSEL:
Valerie A. Hazlett Parker, Counsel for the Applicant Iain Oliver

Sharon G.H. Bond and E. Antel, Counsel for the Respondent Margaret Anne Oliver

HEARD: November 21, 22, 23 and 21, 2011; written submissions concluded December 22, 2011

Reasons for judgment

Issues

[ 1 ] The main issue to be determined at this trial is the equalization of net family property. Throughout this decision I shall refer to Iain Oliver as “the applicant,” Margaret Anne Oliver as “the wife” and Lawrence Joseph Oliver as “the husband.”

[ 2 ] In determining the proper equalization payment the court has been called upon to rule on whether a condominium property in Toronto is a matrimonial home and whether, its value, therefore, should be included in the respondent wife’s net family property. As well, there must be a determination of whether the value of certain bank and credit union accounts are included in the wife’s net family property.

Preliminary Procedural Issue: The Affidavit of Lawrence Joseph Oliver Sworn July 2, 2009

[ 3 ] At the outset of this trial, the applicant’s counsel requested that the court allow the affidavit of the husband to be read into the evidence. The wife objected. I ruled that the affidavit could be used as part of his case.

[ 4 ] The husband started his case by issuing an application for equalization on August 26, 2008. His application was served in January 2009.

[ 5 ] The wife filed her answer shortly thereafter. A case conference proceeded in April 2009 and a settlement conference in July 2009, followed by a trial management conference in November 2009. The case was scheduled to be tried in the fall of 2010 but was adjourned. A further settlement conference took place in January 2011. The case proceeded to trial in November 2011.

[ 6 ] After the trial management conference was held the husband, whose health had been failing, took a turn for the worse; he died on January 27, 2010. He was 90 years old. The applicant, his son, the executor of his estate, proceeded with the case.

[ 7 ] The husband’s counsel, concerned about losing his evidence for trial, had him swear an affidavit on July 2, 2009. While the wife’s counsel was told that the affidavit existed, the contents were not imparted to her until July 21, 2011, when the affidavit was served (some 14 months after the husband’s death.) To put the timing in some perspective, the affidavit was served after the second settlement conference.

[ 8 ] The wife’s counsel complains that the husband’s counsel did not disclose the existence of the affidavit when it was sworn and, therefore, she had no opportunity to cross-examine the husband upon it. Had she been aware of the contents of the affidavit when it was sworn, she would have had ample time within which to cross-examine. Under the circumstances, she submits, it would be unfair to allow the affidavit stand as evidence in this trial.

[ 9 ] The husband’s counsel takes the position that the affidavit was properly sworn. Counsel submits that she was being prudent in the event of her client’s death. She further submits she was under no obligation to serve the affidavit. She did so, she stated, only when she was fairly certain that the matter would proceed to trial.

[ 10 ] The applicant’s counsel submitted that prejudice to the parties in this case was a two-way street and urged the court to weigh the prejudice that would flow to each party.

Discussion

The Legal Context

[ 11 ] Rule 23 of the Family Law Rules , O. Reg. 114/99, deals with evidence and trials.

[ 12 ] Rule 23(20) states as follows:

EVIDENCE BY AFFIDAVIT OR ELECTRONIC RECORDING

(20) The court may allow a witness to give evidence at trial by affidavit or electronic recording if,

(a) the parties consent;

(b) the witness is ill or unavailable to come to court for some other good reason;

(c) the evidence concerns minor or uncontroversial issues; or

(d) it is in the interests of justice to do so. O. Reg. 114/99, r. 23 (20) .

[ 13 ] Rule 23(20.1) enables a judge conducting a conference to allow a witness to give evidence by way of affidavit at trial subject to the discretion of the trial judge. That did not occur in this case.

[ 14 ] To provide further context for deciding whether to admit affidavit evidence Rule 53.01(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, states,

Unless these rules provide otherwise, witnesses at the trial of an action shall be examined orally in court and the examination may consist of direct examination, cross-examination and re-examination.

[ 15 ] The legislative preference clearly favours oral examinations with the right of cross-examination.

[ 16 ] Harold Niman, in his text book called Evidence in Family Law (Toronto: Canada Law Book, 2011), at 2-44 cites the Family Law Rules and states,

[t]he rules permit a court to allow a witness to give evidence at trial by affidavit… if the parties consent, if the witness is unavailable to attend at court for some good reason, if the evidence concerns minor or uncontroversial issues, or if it is in the interests of justice to do so.

[ 17 ] The author, in referring to Rule 23(21) of the Family Law Rules , goes on to say,

For evidence to be admissible by affidavit… it must be served at least 30 days before the start of the trial and it must be that it would have been admissible if given by the witness in court.

[ 18 ] Clearly the husband was unavailable to give evidence at trial. It is also clear that the wife’s counsel was served with the affidavit in advance of the 30 day period that is required.

[ 19 ] The husband’s affidavit, not surprisingly, tells a very different factual story than that proffered by the wife. The husband’s counsel in her submissions puts the credibility of the spouses in issue. This issue is then coupled with the failure of opportunity to cross-examine. It was in this context that the court was asked to rule on the admissibility of the affidavit. The lack of opportunity afforded the wife’s counsel to cross-examine becomes important.

[ 20 ] To state the obvious, issues of credibility should generally be dealt with by permitting the adverse party to question the party proffering the evidence. See Rosenthal v. Rosenthal , [2000] O.J. No. 2664 (S.C. (Fam. Ct.)).

[ 21 ] However, the case law seems to prefer a process which would allow the court to receive the affidavit in evidence while giving the trial judge wide latitude to make findings of fact by balancing the weight to be given to the evidence proffered by affidavit. In fact, when asked, the wife’s lawyer could not point to a single case which supported her position that the affidavit be excluded.

[ 22 ] In Connolly v. Gale , 2002 62571 (ON CJ) , [2002] O.J. No. 2571 (C.J.) at para. 27 , the court stated,

The case of Leclerc et al. v. St. Louis (1984), 1984 2053 (ON SC) , 47 O.R. (2d) 584 , 5 O.A.C. 307 , 11 D.L.R. (4 th ) 765 , 45 C.P.C. 137 (Ont. Div. Ct.) , supported Ms. Racz’s position that, where a person has died, an affidavit from that individual may be received into evidence.

[ 23 ] While it can be argued that the complaining party in Connolly had ample opportunity to cross-examine and chose not to do so, it appears that case law suggests that the court’s ability to decide on relevance and the weight to be given to different parts of an affidavit can reduce any injustice in a case. This position seems to be preferred to that proposed by the applicant wife which would see the court lose all of the husband’s evidence.

[ 24 ] Epstein, J. (as she then was) in Cormack Animal Clinic Ltd v. Potter, 2009 713 (ON SC) , [2009] O.J. No. 141 (S.C.) put it this way,

I cannot see any reason why an affidavit should be treated differently than a medical report or that a medical report ought to be treated differently than any other type of expert report. They all give rise to the identical objection: prejudice to the opposing party in not having an opportunity to cross-examine.

Counter - balancing this prejudice is the need of the trial judge to have all possible relevant evidence before him or her in order to determine the issues raised in the action. In my view, this requirement, particularly where the evidence in question is of importance and cannot be obtained in any other way, takes priority over the prejudice suffered by a party in being deprived of its right to cross-examine, especially since this prejudice can at least be addressed by the trier of fact through a consideration of the weight to be attached to the evidence in question. The court should, however, attempt to go further where possible to assist in reducing the prejudice suffered by the opposing party through not being able to cross-examine.

[ 25 ] Therefore, I have concluded that the requirement that a trial judge have all possible relevant evidence trumps the prejudice suffered by a party in being deprived of the right to cross-examine.

(Decision text continues exactly as provided in the source.)

Justice C. Nelson

Date Released: April 5, 2012