KOHAN v KOHAN, 2016 ABCA 125


5.6: Form and contents of affidavit of records

Case Summary

The Defendant appealed a Judgment granting child support and spousal support. One of the issues in the Appeal was whether adequate evidence was adduced that the parties’ daughter ought to be considered a dependant for the purposes of child support. The Trial Judge had awarded child support for a period in which the child was over the age of majority. The Court of Appeal found there was insufficient evidence regarding the child’s present and intended educational plan to support this finding, and that the Plaintiff (Respondent) had failed to meet the burden of proof for child support. The Respondent argued that the burden of proof at Trial had been met by noting that she had answered 99 Undertakings and provided 45 Releases with respect to documents in the Affidavit of Records. The Court of Appeal noted that Rule 5.6 requires each party to produce “relevant and material” documents under their control, and that providing a Release to allow the other party to obtain a record does not satisfy this obligation. The Court held that the party that controls the document must obtain and produce it.

The Court also noted that, even where a party takes a Release, and does nothing with it, that does not affect the burden of proof at Trial. A party who fails to produce relevant and material records cannot take the position at Trial that missing evidence is the responsibility of the other party because that party had obtained a Release.

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