TAM v MOG, 2021 ABQB 351
13.18: Types of affidavit
The Applicant applied to obtain a DNA test and a declaration that the Respondent was the biological father of her 14-year-old son pursuant to the Family Law Act, SA 2003, c F-4.5. One of the Respondent’s several challenges to the Application involved the Applicant’s Affidavit.
Citing the Alberta Court of Appeal in JCC v NCC, 2018 ABCA 115, Feth J. noted that an Application for permission to obtain a DNA test does not require evidence sworn on the basis of personal knowledge. Instead, the Affidavit may be sworn on the basis of “information known to the person swearing the affidavit and that person’s belief” pursuant to Rule 13.18(1)(b).
The Respondent submitted that the Applicant’s Affidavit was untruthful and should be disregarded because of a lack of credibility. Feth J. noted that credibility cannot usually be assessed in a Chambers Application on Affidavit evidence, absent cross-examination on the Affidavit or viva voce evidence.
The Applicant was successful in obtaining an Order for a DNA test, however, the Court declined to make a declaration that the Respondent was the biological father prior to the DNA test being completed.View CanLII Details