Justice Mah presided over this child mobility case in which the father, SDO, brought an Application to have the children returned to Alberta after having lived with their mother, RAO, in Nova Scotia for nearly two years. Following a domestic abuse incident between the parents, RAO brought an ex parte without notice Application in morning chambers on July 11, 2018, in which she was granted full custody of the children and an Order preventing SDO from having parenting time (the “July 11, 2018 Order”). Thereafter she moved to Nova Scotia for work, taking the children with her.

The July 11, 2018 Order was reviewed on August 10, 2018. During  the August 10, 2018 morning chambers hearing, the Court held that the determination of parenting time could not be made in that hearing, since Practice Note 2 stipulates that such matters must be scheduled for a Special Application. This procedural element brought evidentiary issues into play in the current Application before Justice Mah.

RAO’s counsel alleged that SDO’s Affidavit contained impermissible hearsay evidence, which was barred by Practice Note 2 since this Application was a final adjudication of where the children would reside. Implicit in this argument was that since Practice Note 2 stipulates that the issue could not be adjudicated in morning chambers when the July 11, 2018 Application was returnable, then this Special Application must operate as the final adjudication. However, His Lordship found that pursuant to Rule 13.18, hearsay evidence is permissible in an Affidavit sworn in support of an Application for an Order which is not final. Justice Mah further stated that although hearsay is admissible in such circumstances, the Court will still assess the credibility and reliability of such evidence in order to attribute the appropriate weight. Accordingly, His Lordship granted SDO’s Application to return the children to Alberta in consideration of the fact that the matter may still proceed to Trial, and thus the Application was not a final adjudication.