Apr 28, 2016

Affidavit Mistakes | Why “Smear Campaigns” don't work in BC Family Law

M.A.V. v. E.K.M., 2016 BCSC 594 (CanLII)

In the recent case of MAV v. EKM, 2016 BCSC 594, John M. Richter appeared on behalf of father, MAV. In that case, MAV was applying for increased parenting time of his three boys. Since the date of separation in August 2015, the children had been primarily staying with the mother in the parties’ former family home. The mother had taken the position that she had the right to deny the father adequate parenting time.

In late November 2015, the parties entered into a memorandum of understanding with respect to the parenting time. In that memorandum of understanding, the mother agreed to allow the father to have gradually increased parenting time so that as of late December 2015 the father had parenting time with the children on Wednesday after school until Friday before school.

The three children have historically had very busy activity schedules. During the father’s parenting time (on Wednesday and Thursday evenings), the children’s schedules were packed resulting in the father having little to no down time to spend with the children. The father sought at least one weekend day to spend with the children so that he could enjoy some “unstructured” time with them.

At the hearing, the mother presented a number of affidavits from her, her counsel’s office and her immediate family which included egregious examples of inadmissible hearsay, opinion, and findings of fact. In family law cases especially, the court has stated on numerous occasions that affidavits are required to be limited to the facts the court is required to know to make a decision. Master MacNaughton cites Justice Spencer in Creber v. Franklin at paragraph 24:

… affidavits should state the facts only, without stooping to add the deponent’s descriptive opinion of those facts. It should be left to argument to persuade the trier of fact what view he or she should take of them. For counsel to permit affidavits to be larded with adjectives expressing an opinion about the conduct of the other side contributes nothing to the fact finding process. On the contrary, it does a disservice. It exacerbates existing ill feeling. It pads the file with unnecessary material and it wastes the court’s time.

The purpose of the mother’s affidavit evidence was clearly to paint the father as a bad person and as a bad parent. Master MacNaughton states at paragraph 39 that “Overall, the affidavits filed on EKM’s behalf contain more than the facts necessary for me to decide the issues in this application. To the extent the affidavits contain anything which is not factual and, therefore, inadmissible, I have chosen to disregard it.”

Master MacNaughton goes on to find that the mother’s concerns with respect to the father’s parenting were greatly exaggerated. She found that if the father’s parenting had been so questionable, she would not have agreed to include weekday evenings in the memorandum of understanding. In all of the circumstances, Master MacNaughton found that the father was a capable parent and awarded him increased parenting time.

In this case, the mother’s extended family have always played a large role in the lives of the family and the children. They have been there to help out with the children’s busy schedules, getting them to activities or school on time. After separation, the mother continued to use her extended family to help out with the children, while at the same time denying the father parenting time. Master MacNaughton found that although the extended family during the relationship was helpful, on separation, the wife ought not be relying on third parties for help with the parties’ busy schedules and instead ought to allow the father to help where necessary.