JANITEN v MORAN, 2019 ABCA 380
MCDONALD, VELDHUIS AND CRIGHTON JJA
9.2: Preparation of judgments and orders
9.4: Signing judgments and orders
13.25: Use of filed affidavits
The Appellant mother, Holly-Lyn Janiten (the “Mother”) appealed an Order (the “Vacating Order”) granted to the Respondent father, Jeffrey Douglas Moran (the “Father”) which had vacated two prior Orders that the Mother had obtained pertaining to child support (the “Prior Orders”). The Vacating Order vacated both Prior Orders, significantly reduced the child support arrears owed to the Mother, and reduced the Father’s monthly support for 2018 and 2019 based on the Father’s evidence provided on his Application for the Vacating Order (the “Application”).
The Mother had failed to provide an Affidavit for the Application and the Chambers Judge maintained that since the Mother had filed nothing with respect to the Application, she did not have any evidence before the Court.
On Appeal, McDonald J.A., speaking for a unanimous Court, noted that Rule 13.25 expressly states “… a party may use and refer to any affidavit filed in the action.” Accordingly, the Court found that the Chambers Judge had erred by refusing to look at the Mother’s Affidavits filed earlier in the Action.
The Court concluded by allowing the Appeal, setting aside the Vacating Order, and substantively reinstating the Prior Orders. The Court also awarded Costs in the amount of $5,000 inclusive of disbursements to the Mother and invoked Rules 9.4(2)(c) and 9.2(2)(d) pertaining to preparation of and approval of the Order.View CanLII Details