BEHM v HANSEN, 2019 ABQB 813


5.13: Obtaining records from others
8.10: Order of presentation
9.13: Re-opening case
13.18: Types of affidavit

Case Summary

The Applicant, a mother in a family Trial, applied to adjourn the Trial in order to seek information from the father and a third party relevant to the father’s potential interest in a business. The father had provided evidence at Trial about his “limited employment” by the business, but the mother was advised by a third party during Trial that he may actually own the business. The father’s income and assets were material issues in the Trial.

The mother invoked Rule 9.13 to require the father to disclose additional information about his connection with the company, and also sought an Order pursuant to Rule 5.13 directing a third party, who apparently was the sole shareholder of the company, to provide banking and other records related to the issue.

The father objected to a further adjournment, arguing that the mother’s Affidavit in support of her Application contained hearsay (namely, that the third party had advised her that the husband was an owner of the business). He further argued that pursuant to Rule 8.10(1)(d), where a Defendant’s evidence has concluded, the Plaintiff may adduce evidence, but that the evidence the mother wished to adduce was hearsay which could not be admitted. The mother countered that, pursuant to Rule 13.18, an Affidavit may be sworn on the basis of information and belief, if the source of the information is sworn to in the Affidavit and if the Affidavit is not in support of “final” relief. The Court accepted the mother’s arguments that since she was not seeking final relief, she was entitled to rely on information and belief pursuant to Rule 13.18.

The Court also held that Rule 9.13 did not apply to the situation, because it addresses circumstances where an Order or Judgment exists, but has not yet been filed. In this case, since the Trial was still ongoing, it was not necessary for the Rule to be invoked. Since the mother first learned of the father’s connection to the company during the Trial, and the father could not point to any reason that the mother should have known about it earlier, Lema J. adjourned the remainder of the Trial to assess the father’s connection to the company.

With respect to the mother’s Application for the production of third-party records respecting the company, Lema J. explained that the Court must consider the relevance and materiality of the proposed third-party records, although “relevance and materiality need not be guaranteed for records to be directed to be produced by non-parties”. The question is rather whether the documents or information sought may relate to matters in issue in the Action. Lema J. held that reasonable question did exist about the father’s involvement with the company, and ordered that the third party provide banking and other records to the mother within 30 days.

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