In Ariss v. Ariss, 2011 ABQB 435 [Ariss], the wife brought an Application to unfile an Affidavit sworn by her in support of an Interim Order for child support and spousal support. Subsequently, the issues regarding support were settled out of Court. Counsel for the husband consented to an Order removing the Affidavit from the Court file. 

Justice D. Lee considered when the Court should allow a party to withdraw a filed Affidavit. The Evidence Act, RSA 2000, c. A-18 and the Alberta Rules of Court, do not provide direction regarding the withdrawal of affidavits. However, relevant case law exists regarding this issue. 

In Boehringer Ingelheim (Canada) Ltd. v. Canada (Minister of National Health, Health Protection Branch), 2003 FCA 151, the Federal Court of Appeal affirmed that substitution of an affidavit, which includes a withdrawal, is at the Court's discretion. Furthermore, the most important consideration is whether there will be prejudice to the party requesting the withdrawal, if it is not granted. In this case, the Court upheld the Trial Division Judge's decision not to allow the withdrawal, due to the fact that prejudice had not been established.

Gill v. Gill, 2004 BCSC 518 [Gill], is closely on point with Ariss. In Gill, both parties filed inflammatory Affidavits in support of an Application related to issues involving the parties’ children. The parties settled their issues prior to the Application and subsequently applied to have the inflammatory Affidavits withdrawn.

The factors that a court should consider in deciding whether to allow the withdrawal of an affidavit were outlined in Gill at para. 36:

  1. Was the affidavit filed by mistake?
  2. Has the affidavit been used, in the sense of having been before the Court, during the course of considering an application?
  3. Is there a pending application before the Court for which a party has indicated it intends to rely upon the affidavit?
  4. Is the application to withdraw the affidavit made as a strategic or tactical decision to deny the other party access to relevant information or the ability to cross-examine the deponent? 
  5. Would the other party be prejudiced in any way by withdrawal of the affidavit?
  6. Are there policy considerations which would militate against a withdrawal of the affidavit?
  7. Would the administration of justice be adversely affected by the withdrawal of the affidavit?

The most influential of these factors include whether the reason for the withdrawal is to prevent cross-examination of a witness, whether the withdrawal is strategic and whether the withdrawal would cause prejudice to the opposing party. Policy reasons against allowing an affidavit to be withdrawn are also important. Generally, documents should not be removed from a court file because it is a public record. In this case, Master J. Brine permitted the withdrawal of the parties' Affidavits because they had not been before the Court, the relevant Application was no longer pending, the withdrawal request was not made for strategic reasons and there would be no prejudice caused to either party by the withdrawal. Finally, Master Brine noted that if the Affidavits remained on the court file, this could impede the parties' settlement negotiations.

In Ariss, the Affidavit had not been before the Court because the Application did not proceed. There was no intention to withdraw the Affidavit for strategic reasons or to prevent the opposing party from cross-examining the deponent. Neither party would be prejudiced by a withdrawal of the Affidavit. Ultimately, Justice Lee allowed the withdrawal of the Affidavit. However, he also stated that these types of applications are serious matters and it can be inferred that such applications should not be brought frivolously.

Although it is possible to bring a successful application to have an inflammatory affidavit withdrawn, parties should reflect seriously before filing such affidavits.