Benka v. Benka, (1998) 75 O.T.C. 361 (GD)

• Judge: Vogelsang, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: September 08, 1998
• Jurisdiction: Ontario
• Citations: (1998), 75 O.T.C. 361 (GD)

Benka v. Benka (1998), 75 O.T.C. 361 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. OC.063

Rosa Benka v. Jan Benka

(London F125/98)

Indexed As: Benka v. Benka

Ontario Court of Justice

General Division

Family Court Branch

London

Vogelsang, J.

September 8, 1998.

Summary:

A wife sought support, possession of the matrimonial home and other relief. She swore an affidavit setting out her position. The husband responded that he had a complete defence based on the terms of a marriage contract. He brought a cross-motion seeking, inter alia, an order dismissing the wife's application on a summary basis. The parties' son swore an affidavit in support of the mother, which included comments attributed to his sister and his mother. The son raised an allegation of his mother's lack of knowledge of the English language. He stated that his mother could not understand the agreement relied upon by the father and adopted the role of translator on his mother's behalf. The father moved to strike the son's affidavit.

The Ontario Court (General Division), Family Court Branch, struck the son's affidavit because of the derivative evidence contained therein. The son's offering himself up as a translator of his mother's evidence was also a ground for rejecting the affidavit.

Family Law - Topic 4248

Divorce - Evidence and proof - Affidavit evidence - See paragraphs 1 to 14.

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - See paragraphs 1 to 45.

Cases Noticed:

R. v. Valencia (E.L.) (1998), 69 O.T.C. 295 (Gen. Div.), refd to. [para. 11].

Authors and Works Noticed:

McLeod, Annotation to Csak v. Mokos (1995), 18 R.F.L.(4th) 161, generally [para. 7].

Counsel:

Hamoody M. Hassan, for the applicant;

Michael Menear, for the respondent.

This motion was heard before Vogelsang, J., of the Ontario Court (General Division), Family Court Branch, who released the following decision on September 8, 1998.