Court File and Parties

KINGSTON COURT FILE NO.: 205/19 DATE: 20200617 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kandice Lee Jones, Applicant AND: Garrett William Jones, Respondent

BEFORE: Madam Justice Cheryl Robertson

COUNSEL: None for the Applicant None for the Respondent

HEARD: In chambers

Endorsement

[1] The supporting affidavit and proof of service in a Divorce Application must be filed in proper form, even in undefended matters. Unsworn and unwitnessed affidavits are deficient, even in COVID-19 times where rules are modified. Many adjustments to court practices were implemented quickly. Process gaps may need to be patched. Apparently, there is no free way for self represented litigants of modest means to commission affidavits. There are no Legal Aid duty counsel, Community Legal Clinic personnel or court services representatives designated to virtually commission affidavits. This results in an access to justice barrier for poor litigants.

[2] This Applicant just wants a divorce. She successfully uploaded her handwritten affidavit and her friend’s Affidavit of service. Neither affidavit is commissioned or even witnessed.

[3] She seeks a divorce on the grounds of cruelty or, alternatively, separation exceeding one year. She describes a decade of violence by the Respondent. There are child protection concerns but she is co-operatively working with authorities. Her material refers me to her CAS worker who has “all the info on charges”. Regrettably, the court cannot contact social workers to obtain evidence or particularize a claim. Court determinations are solely based on properly tendered evidence in the court record.

[4] The cruelty pleadings direct me to see her unsworn affidavit which mentions serious violent incidents predating the marriage by several years. The affidavit itself is vague yet alarming. To be successful, a divorce claimed on the grounds of cruelty must be properly pleaded.

[5] This Applicant mother does not receive child support. The Respondent father is facing new charges. She has 100% responsibility for the care of the young child. The Applicant mother lacks discretionary income to retain legal help to commission her material.

[6] I am prepared to grant the divorce on the ground of one year separation but I require either commissioned affidavits or a hearing, by video or phone to swear or affirm the affidavits. The legal process must be correctly followed. This does not mean the court doubts the substance of the terrible history she endured or is unsupportive of her efforts to leave a dangerous man. She is being guided by her child protection worker to stay away from the Respondent. Perhaps a divorce conveys the end of their relationship.

[7] The Consolidated Notice to the Profession dated May 13th speaks to commissioning affidavits by video. It also states that where it is not possible to commission an affidavit by video conference, an unsworn affidavit may be delivered to the Court, but the deponent must be able to participate in any telephone or videoconference hearing to swear or affirm the affidavit. While this allows a court hearing to overcome this barrier, it is not a workable long-term alternative to commissioned evidence. The backlog of cases is long. It seems a poor use of resources to require the Trial Co-ordinator to arrange a hearing before a Judge for two witnesses to simply to commission their affidavits.

[8] I direct the Trial Co-ordinator to deliver a copy of this endorsement to the supervising duty counsel and to the Supervisor of Court Operations. I request, but do not order, that an arrangement be made to assist this Applicant to commission the evidence. This is not a criticism of anyone. Instead, it is a polite notification of a barrier for this litigant to access the court. This Applicant is entitled to proceed with her matter without delay.

[9] If neither can assist her, the Trial Co-ordinator shall set up a Zoom hearing before me at the Applicant’s convenience and I will gladly attend to it.

Madam Justice Cheryl Robertson Date: June 17, 2020