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ARTICLE · 09 JANUARY 2012

Withdrawal Of Affidavits

DLA Piper
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In Ariss v. Ariss, 2011 ABQB 435 [Ariss], the wife brought an Application to unfile an Affidavit sworn by her in support of an Interim Order for child support and spousal support. Subsequently, the issues regarding support were settled out of Court.

CanadaFamily and Matrimonial
Joni Funk
Joni Funk
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In Ariss v. Ariss, 2011 ABQB 435 [Ariss], the wife brought an Application to unfile an Affidavit sworn by her in support of an Interim Order for child support and spousal support. Subsequently, the issues regarding support were settled out of Court. Counsel for the husband consented to an Order removing the Affidavit from the Court file.

Justice D. Lee considered when the Court should allow a party to withdraw a filed Affidavit. The Evidence Act, RSA 2000, c. A-18 and the Alberta Rules of Court, do not provide direction regarding the withdrawal of affidavits. However, relevant case law exists regarding this issue.

In Boehringer Ingelheim (Canada) Ltd. v. Canada (Minister of National Health, Health Protection Branch), 2003 FCA 151, the Federal Court of Appeal affirmed that substitution of an affidavit, which includes a withdrawal, is at the Court's discretion. Furthermore, the most important consideration is whether there will be prejudice to the party requesting

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