Moore v. Moore

Moore v. Moore

The court struck large portions of the affidavits because they consisted of personal opinions, argument, characterizations and unattributed or unsupported hearsay not shown to be necessary or reliable under R. v. Khan; affidavits must state factual particulars within the affiant's knowledge and provide foundation for any hearsay to be admitted under the recognized tests.

Citation
2013 NSSC 175
Parties
Petitioner/respondent: Barry Allan Moore; Respondent/applicant: Christine Anne Moore
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
14 June 2013
Procedural Posture
Family Law — Variation of Parenting Orders / Motion to Strike Affidavits Under Civil Procedure Rule 39.04 at Commencement of Variation Application
Outcome
Motions to strike granted in whole or in part; substantial portions of both affidavits struck; decision on costs deferred to the overall application.
Legal Topics
Affidavits, Hearsay Admissibility, Opinion Evidence, Civil Procedure Rule 39.04, Child Statements (r. V. Khan)
Source Language
English
Family Law Civil Procedure Evidence Law Affidavits Hearsay Admissibility Opinion Evidence Civil Procedure Rule 39.04 Child Statements (r. V. Khan)

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Parties

Barry Allan Moore

Petitioner/respondent

Christine Anne Moore

Respondent/applicant

Procedural Posture

Family Law — Variation of Parenting Orders / Motion to Strike Affidavits Under Civil Procedure Rule 39.04 at Commencement of Variation Application

Legal Issues

  1. 1 Whether affidavit evidence containing opinions and argument may be admitted
  2. 2 Whether attributed statements by a child in another's affidavit constitute admissible hearsay without showing necessity and reliability
  3. 3 Whether affidavit paragraphs not based on personal knowledge must be struck under Rule 39.04

Ratio Decidendi

The court struck large portions of the affidavits because they consisted of personal opinions, argument, characterizations and unattributed or unsupported hearsay not shown to be necessary or reliable under R. v. Khan; affidavits must state factual particulars within the affiant's knowledge and provide foundation for any hearsay to be admitted under the recognized tests.

Court Disposition

Motions to strike granted in whole or in part; substantial portions of both affidavits struck; decision on costs deferred to the overall application.

Orders

  • Dr. David Mensink: strike paragraphs 1,2,3,4,5,6,7,8,9,10,11 and 12 of his affidavit (all paragraphs of the affidavit).
  • Susan Coldwell: strike all paragraphs of her affidavit except the single sentence stating she has known Angeline since birth and has known Christine approximately 11 years (i.e. retain only that paragraph/sentence).