Court File and Parties
Citation: Samrith v. Chea, 2017 ONSC 2307 Court File No.: FD437/16 Date: April 19, 2017 Superior Court of Justice – Ontario Family Court
Re: Chamroeun Samrith, applicant And: Vutha Chea, respondent
Before: Mitrow J.
Counsel: Chamroeun Samrith in person Vutha Chea not appearing
Heard: March 17, 2017
Endorsement
[1] This case involves an application for divorce; the only claim sought is a divorce.
[2] After numerous “basket motions” that came before me in chambers, I ordered that this matter be placed before me in court. The issues outstanding to grant the divorce required some further affidavit evidence. I did endorse on February 6, 2017 that I was satisfied that the respondent had been served in Cambodia substitutionally, as previously ordered. This case is undefended. The respondent’s time to file an answer has expired.
[3] When this matter came before me in court, it was quite apparent that the applicant’s ability to read or write in the English language was very limited. She made this admission through an interpreter.
[4] When the applicant was preparing and filing the necessary documents for this uncontested divorce, she had the assistance of her sister, apparently, in explaining the documents that the applicant was signing. The applicant indicated that her sister has knowledge of the English language; however, it is unclear whether her sister’s language skills are sufficiently proficient to interpret properly the documents that the applicant has signed.
[5] The continuing record contains various affidavits signed by the applicant, including the rule 36 affidavit for divorce. That affidavit, signed by the applicant on August 15, 2016, was commissioned by a person employed by the Ministry of the Attorney General. I can take judicial notice of the fact that it is not unusual for Ministry staff to swear affidavits filed by self-represented parties. In doing so, Ministry staff are being helpful in providing assistance to self-represented litigants who, otherwise, would experience delays in filing their documents.
[6] Every person who commissions an affidavit has an obligation to satisfy herself or himself that the deponent understands the language used in the affidavit.
[7] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 address directly the procedure to be followed when a deponent does not understand the language used in the affidavit. Rule 4.06(8) states:
4.06(8) Where it appears to a person taking an affidavit that the deponent does not understand the language used in the affidavit, the person shall certify in the jurat that the affidavit was interpreted to the deponent in the person’s presence by a named interpreter who took an oath or made an affirmation before him or her to interpret the affidavit correctly.
[8] This requirement should apply also to family law proceedings via r. 1(7) of the Family Law Rules, O. Reg. 114/99.
[9] None of the affidavits signed by the applicant, including the affidavit for divorce, made any reference, in the jurat, that the affidavit was interpreted to the applicant.
[10] The result is that it is not possible to rely on the applicant’s affidavit for divorce.
[11] It is troublesome that the applicant signed affidavits, in relation to obtaining an order for substituted service, that also were not in conformity with r. 4.06(8). However, there are also affidavits signed by the applicant’s sister in relation to service, such that I am satisfied that it is not necessary to vacate the order for substituted service.
[12] Where it appears that a deponent may not understand the language used in the affidavit, the person taking the affidavit should adhere to the following procedure:
(a) make a brief enquiry of the deponent to ascertain whether the deponent is able to read and understand the affidavit; if there is any reasonable concern on the part of the person taking the affidavit as to the deponent’s ability to understand the affidavit, the affidavit should be interpreted to the deponent;
(b) where interpretation is required, then the affidavit in its entirety shall be interpreted to the deponent by an interpreter and this interpretation must be done in the presence of the person taking the affidavit;
(c) it is always a best practice to ensure that the interpreter is a person who has the necessary credentials to interpret the affidavit to the deponent; interpretation by friends or family of the deponent is discouraged, and generally should not be relied on;
(d) the interpreter is required to take an oath or be affirmed, to be administered by the person taking the deponent’s affidavit, to interpret the affidavit correctly; as a practical matter this condition is best satisfied by having the interpreter sign an affidavit setting out the interpreter’s credentials, the fact that the interpreter correctly interpreted the entire affidavit to the deponent, and that the deponent understood the affidavit before signing it;
(e) the jurat of the affidavit must contain the name of the interpreter, and must state that the interpreter interpreted the affidavit from one named language to another named language in the presence of the person taking the affidavit; the person taking the affidavit must also include in the jurat that he or she took the interpreter’s oath or affirmation to interpret the affidavit correctly or, alternatively, the interpreter should file a separate affidavit as explained in paragraph (d).
[13] Further, I have no confidence that the applicant understood the application when she signed it; accordingly, the order requires the applicant to append the application as an exhibit to her form 36 affidavit given that that affidavit requires the applicant to depose whether the information contained in the application is correct.
[14] It is recognized that Ministry staff, who serve persons at the counter when documents are filed, often are busy given the number of persons they must assist. Generally, when an interpreter is required, there will not be sufficient time available for a Ministry staff person to preside over an interpreter translating an affidavit. In these circumstances, that process will need to be conducted elsewhere, including with the assistance of the Family Law Information Centre (“FLIC”) and/or duty counsel, when a person is eligible for such assistance.
[15] It is commonplace for orders and judgments of this court to be based solely on affidavit material. Persons who commission affidavits must be vigilant to ensure that an interpreter is utilized where a deponent appears not to understand the language of the affidavit; failure to do so may result in orders and judgments being made based on unreliable evidence.
[16] The court, generally, will have no knowledge as to whether an interpreter should have been used. The person who takes an affidavit is the “gatekeeper” and, as such, the court necessarily must place reliance on that person’s assessment as to whether the deponent understood the language of the affidavit.
[17] I order as follows:
The applicant shall file a fresh affidavit for divorce (form 36), and that affidavit shall have the application appended to it and marked as an exhibit.
The affidavit for divorce shall include the following additional information (or, alternatively, this additional information may be included in a separate form 14A affidavit):
(a) the applicant needs to explain why the date of marriage is stated in the application to be March 8, 2013, whereas the date of marriage registration is shown to be March 12, 2013 in the certificate of marriage;
(b) the applicant needs to confirm that she is one and the same person as referred to in the certificate of marriage given the differences in the spelling of her name in the certificate of marriage and the application;
(c) the applicant should explain why the date of cohabitation shown in the application is over one year subsequent to the date of marriage;
(d) the applicant should confirm the accuracy of the certificate of marriage and that she and the respondent were both personally present during the marriage ceremony; the applicant should confirm her residence history for the period starting January 1, 2012 and the applicant should explain when, and where, she cohabited with the respondent, and where each party was residing on the date of separation; and
(e) the applicant should provide the city and country where the parties were married.
Any affidavits signed by the applicant, as required above, shall first be interpreted to the applicant by a certified interpreter, prior to signature by the applicant, and the interpreter shall file a separate affidavit deposing to his or her credentials, confirming that the affidavit, including any exhibits, was interpreted by the interpreter to the language of the applicant and that the applicant understood the affidavit, including any exhibits, before she signed the affidavit. Further, the interpreter’s affidavit shall confirm that this endorsement was interpreted to the applicant.
The draft order should refer also to the country where the parties were married.
I remain seized with the matter, and all further documents in compliance with this order, when filed, shall be forwarded to me in chambers.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: April 19, 2017