By Chyanne Sharma, Articled Student, Vancouver
What is an Affidavit?
An affidavit is a document that outlines your statement of facts and supports your evidence. It basically tells your story in relation to the family law matter that you would want a judge to know about. To support statements made in affidavits, we attach exhibits, which are documents such as letters, text messages, emails, photos, that can verify your claims. At the bottom of your affidavit, you swear or affirm with a commissioner or notary that the contents you have written about in the document are true.
What should you include?
When drafting your affidavit, you must tell the truth and include only relevant facts. This means that you should leave all opinions out of it and don’t cite the law or any other authorities. When focusing on what is relevant, think about facts that you know happened first-hand. Everything that you state is based off your own personal knowledge – what you saw, heard, did, etc. If you are responding to an affidavit, you’d take the same approach. You can respond to the statements in the affidavit made against you and provide your version of the story, supporting it with your evidence as exhibits.
If you need to rely on second-hand information, it’s best that you ask that person to swear their own affidavit to help support your claim. Sometimes there are friends, families, support workers, teachers, counsellors, and neighbours who have witnessed interactions or have an involvement that would be able to provide you with reliable information. However, this isn’t always possible which means you can include relevant information that a second-hand source told you such as your children to a certain extent. When referencing information from a third-party be sure to include the name of the person, time and date, and whatever the information you are quoting must be true. At the end of each sentence where you are quote a third-party, you can state “and I verily believe this to be true” to show the courts that you do not have personal knowledge of this fact, but you believe what your source is saying is true.
Formatting your Affidavit
Remember, an affidavit is providing information that you want the judge to know about. That’s why it’s important to have proper formatting and have it read in an organized fashion. Typically, affidavits are formatted as such:
1. Chronological Order
Each paragraph and page should be numbered so that you can easily reference the judge to certain parts in your affidavit. When organizing your facts, tell your story in the order the event happened and try not to jump between timelines.
2. Knowledge Statement
This will be your first paragraph. You state who you are in the matter (usually either the Claimant or Respondent), and you state that you have personal knowledge of the facts that are in the affidavit. Here is an example of what you should write:
I am the Respondent/Claimant within this family law proceedings and as such have personal knowledge of the facts and matters herein referred to by me except where indicated to be on information and belief, and where so stated I verily believe them to be true.
3. Body of the Affidavit
This is going to be the most important part of your affidavit, be sure that you are organized and to the point. Avoid long paragraphs and run on sentences. As mentioned above, you want to only include facts that are relevant and avoid any opinions. For example, a fact is “On June 1, 2020, I emailed the Respondent to confirm our upcoming parenting plan. Attached hereto and marked as Exhibit “A” is a true copy of the email that I sent.” An opinion is “I think that the Respondent is a horrible father to the children.” In some circumstances we do want expert opinions from doctors or counsellors to give their opinions in courts, but generally the Courts do not want the opinion of the parties. Staying organized with important headings and/or subheadings will help you avoid opinionated statements. Some common headings include:
- Background of the parties
- Procedural history
- Any important/relevant incidents that occurred
- Communication
- Parenting time/arrangements
- Support payments
Before filing your affidavit, have a friend or a legal coach or navigator review and edit your affidavit for grammatic errors and to check for consistency throughout the document. Your last paragraph will typically be a statement stating that you are swearing your affidavit for no improper purpose. On the last page, before the exhibits start, you will sign the affidavit with a commissioner or notary. Clerks at the registry are commissioners and can assist you with swearing or affirming the document before filing. If you have any exhibits, be sure that they are organized according to how you listed them in your affidavit, page numbering them is important as well. The commissioner will stamp and sign each exhibit. Lastly, you’re ready to file and serve your affidavit.
What Will a Judge Look for?
Judges rely on affidavits for evidence and credibility of a party. If there are inconsistencies, misleading or dishonest facts, it will impact your case and will likely lead you to having negative consequences. Judges often will read materials before hearing your matter; therefore, you want them to have a good understanding of your case by staying structured and factual. If a judge is not understanding your statement of facts or does not believe that you have sufficiently supported your claim with evidence, they will likely overwhelm you with questions for clarity or to probe your credibility.
Affidavits are heavily relied on in most court proceedings and it is important that you draft such documents accordingly. To ensure that you have a strong affidavit, schedule a consultation with one of our Vancouver or Calgary legal coaches today to get assistance on preparing your own affidavit. If you have prepared all your materials and are looking for tips in how to conduct yourself in court, read our blog on Courtroom Etiquette 101.
