Court File and Parties

COURT FILE NO.: FC-22-181 DATE: 20230109 SUPERIOR COURT OF JUSTICE, FAMILY COURT 15 Bridge St. W., Belleville, Ontario K8P 0C7

RE: Kristianne Maire Keiller, Applicant AND: Brandon John Cecil Blemkie, Respondent

BEFORE: Regional Senior Justice C. MacLeod

COUNSEL: Andrew Bala, for the Applicant (Responding Party) S. Daniel Baldwin, for the Respondent (Moving Party)

HEARD: September 12, 2022

Decision and Reasons

[1] This is a parenting dispute relating to parenting time and decision making for two children, J.B., born in 2017 and B.B., born in 2018. The parties have been separated since March of 2022. There is a case conference scheduled for January 26, 2023, but leave was granted by Tellier J. to bring this motion. She concluded that the family was in crisis, that the children deserve stability and urgency had been established.

[2] The motion came on before me in Belleville on September 12, 2022. At the conclusion of the motion, I made an interim order providing some parenting time to the Respondent Father, but reserved to give the matter further consideration and to give reasons.

[3] The primary purpose of reserving was to address the significant problems with the affidavit evidence. Mr. Baldwin brought a cross motion to strike out the affidavit filed by the Applicant Mother in response to the father’s urgent motion. There were significant issues with the affidavit as I will discuss but rather than ruling on admissibility as a preliminary matter, given the necessity of a quick decision, I continued with the motion with a view to dealing with the evidentiary difficulty in deciding the motion. [1] In retrospect, it would have been better to strike the affidavit in its entirety and require a new affidavit compliant with the Family Law Rules and with the rules of evidence. I say this because an urgent motion that should have been focused and succinct was lengthy, sprawling and required me to reserve. This is unfair to the father and to the children.

[4] Besides reserving on the disposition of the motion, I also requested input from the Highland Shores Children’s Aid Society (CAS). I have not been informed if the report I requested has been prepared, but if it has been it will be available to the case conference judge.

[5] At the upcoming case conference, the court may review how the expanded parenting time has proceeded, may attempt to narrow or settle the outstanding issues and may give direction as to how the matter is to proceed. This may include a further motion to define the parenting time and the conditions under which it should occur.

[6] The urgent motion was brought by the Respondent who claimed that he had been inappropriately and without justification denied parenting time with the children. He filed an affidavit deposing that the applicant mother was unjustifiably interfering with his parenting time and was without justification in insisting that his access be supervised. The Respondent father’s affidavit sets out the facts on which he relies in numbered paragraphs in a more or less chronological fashion and is recognizable as an affidavit.

[7] Both parties are represented by counsel and were so represented before the motion was brought. There had been discussion between counsel with a view to narrowing the issues or agreeing on a parenting schedule but without success. In response to the motion, the Applicant Mother filed a document entitled “affidavit” but it does not comply with the most basic rules for putting evidence before the court.

[8] The Applicant’s affidavit started with the following declaration:

This Affidavit is my sworn testimony made under penalty of perjury.

• I attest to matters herein within my direct first hand knowledge, observation and experience save where identified to be information from another source or my belief in which case I generally hope to indicate herein the reason for my belief and I believe it to be true
• Sometimes herein I make statements of my legal position, rather than my testimony about fact(s) I witnessed; I attempt to clearly identify such statements by stating for example “I submit” or “I ask the Court to infer from this that…”
• I attempt to present herein as best I can, subject to practical constraints and limitations, ‘the truth, the whole truth and nothing but the truth’ pertinent to the matters before the court
• Where I present quotations herein generally attempt to present them herein without added commentary. Nevertheless at some points in order to aid the Court’s understanding of the information herein I interject my own statements into a quotation which I mark with “ {{… }}”. Also at times Square brackets “[]” indicate a word added, which I believe to be the correct word for clarity but does not rise to the level of being a, full, statement
• (Citations to "Aff #” or “Ans #” herein cite to that paragraph number in Respondent’s Answer/Affidavit).

[9] There follows a document consisting largely of a series of charts with comments and allegations, but mostly of arguments unsupported by specific or detailed evidence. Attached as exhibits are various text messages and other communication dating back to 2010 and which are incomplete and lacking in context. None of this is very helpful in determining what is in the best interests of the children.

[10] In response, the Respondent Father filed an extensive affidavit containing almost the entire history of text messages between the parties.

[11] This situation was exacerbated by counsel for the Applicant Mother who misstated, exaggerated and misinterpreted the evidence. For example, he repeatedly stated that the Respondent Father had admitted that he was in the throes of addiction and substance abuse. When asked to identify that in the evidence he referred to accusations made by his own client in the text messages and to one response by the Respondent when he responded to one such accusation with “oh so I’m a drug addict now?”. These are not admissions and are not probative. The father has agreed to an order that he be sober during parenting time and that he not consume drugs or alcohol in advance of the parenting time. That is not an admission that such an order is needed but is a good faith effort to alleviate the concerns of the mother and of the court.

[12] It should not be necessary to explain to a lawyer the problem of combining and mixing facts, opinion and submissions in what purports to be an affidavit. An affidavit is supposed to be evidence that takes the place of oral evidence. Argument belongs in a factum. There is narrow scope for lay witnesses or parties to present “opinion” to the court, but there is no place for opinion stated as if it is a fact. The Applicant’s so-called affidavit might be explicable if she was representing herself (although it would be no more probative) but Mr. Bala has affixed his name to the document as counsel and it was his office which filed it. A lawyer has no business permitting a document such as this to be filed as an affidavit.

[13] An affidavit is supposed to consist of a written statement confirmed by oath or affirmation for use as evidence in court. To be useful, an affidavit must be factual, truthful and admissible as evidence. The content of an affidavit for a temporary motion in a Family Law proceeding is governed by Rule 14 (17) – (19) of the Family Law Rules. Further guidance may be obtained from the Rules of Civil Procedure and from jurisprudence.

[14] While it is permissible in an affidavit to state the affiant’s information and belief on a material fact providing the affidavit also sets out the source of the information or belief, this is not licence to simply state the affiant’s opinion about parenting skills or best interests of the children or to otherwise argue the motion in the affidavit. The affidavit is supposed to be proof of facts and not argument or opinion that is not firmly anchored to probative evidence.

[15] I recognize that in urgent family law motions, it is often the case that the parties have not had time to obtain or unearth all of the evidence and it may not be possible to prove allegations of violence, assault or inappropriate parenting in any way other than swearing that the event occurred or that the facts as stated are true. Furthermore, in dealing with the best interests of the children, a court must often err on the side of caution if there is substantial reason to believe that unsupervised time with one or other parent may be harmful to the physical or mental well being of a child or children. At the same time, however, the court must be concerned about the impact on the wellbeing of a child if the relationship with one or other of the parents is impaired by unnecessary or inappropriate restrictions.

[16] Accepting that there is some evidence that the father may have been violent with the mother and that he sometimes consumes drugs or alcohol, those facts are far from proven at this stage in the proceeding. As there has been some involvement with the Children’s Aid Society in the past, I would want an updated report from CAS as to whether or not the society has any additional protection concerns since the file was previously closed. I would also want an update on how the parenting time had transpired since the motion was heard. Barring any incident or concerns by the Society, however, I would think that a gradual transition to increased unsupervised access would be appropriate. I leave it to the case conference judge to attempt a resolution along these lines or else to schedule a follow up motion where the issue can be argued on updated and admissible evidence. I am not seized of any such motion.

[17] There will be an order striking out the affidavit of the mother filed on the motion before me in September.

[18] Mr. Bala also attempted to file an additional affidavit after the motion had been argued and after I had taken the matter under reserve. Mr Baldwin submitted that the evidence should not be admitted because it did not meet the test for admitting fresh evidence although he also prepared a supplementary affidavit in case I decided to allow the supplementary affidavit. I have not done so. There was no event that occurred after the motion which would have justified filing more evidence for the urgent motion.

[19] In conclusion, the affidavit filed by the mother in opposition to the urgent motion is struck out. The father shall be entitled to continuation of the parenting time I ordered at the time of the motion and to such further and expanded parenting time as may be ordered by the judge hearing the case conference or at a subsequent motion once full disclosure is available. Subject to any contrary order made at the case conference, the parenting time with the father may but need not be supervised by the paternal grandparents.

[20] The father is entitled to costs of this motion. I will accept written submissions within the next 30 days if the parties are unable to agree on costs or if they do not agree to some other manner of disposing of the costs at or following the case conference.

Regional Senior Justice C. MacLeod Date: January 9, 2023

[1] This is often the preferable approach in non-criminal proceedings. See Anderson v. St. Jude Medical Inc., 29 C.P.C. (5th) 234 (SCJ) at para. 17