By Jenna Lalani, BC Legal Coach
An affidavit is a written document you file in legal proceedings, either to support your application or in response to one. It presents your story and position, accompanied by supporting evidence such as emails, screenshots, legal documents, and other relevant records. The best advice for writing an affidavit is to be both honest and clear, as this document must be sworn or affirmed as true. Serving as your written testimony, it is heavily relied upon in court. Any holes or inaccuracies can significantly undermine your credibility, providing opportunities for the opposing side and judge to challenge your arguments and weaken your case. So, how do you craft an affidavit that effectively presents your evidence? Read on to find out.
Getting Started
Before you start writing your affidavit, it’s important to determine which court you are filing in—provincial or supreme—as each court requires different forms:
For provincial court, you must use Form 45.
Note: there is a 25-page limit for affidavits filed in provincial court, which includes both your written statements and any attachments.
The court will not accept affidavits exceeding 25 pages unless a judge grants permission by way of a court order. You can download the necessary form online here.
Although, it is often easier to navigate and edit the form in Microsoft Word, iIf you choose to use Word, it is important to ensure you use the same format as the court form at the beginning of your affidavit (see SCREENSHOT 1 below). The person who initiates an application in provincial court is referred to as the “applicant”, while the person responding is referred to as the “respondent”.
SCREENSHOT 1
For Supreme Court, you must use Form 30, which can also be downloaded online.
Similarly, it is important to ensure you use the same format as the court form at the beginning of your affidavit (see SCREENSHOT 2 below):
SCREENSHOT 2
As you work your way through the templated form, tell your story in chronological order, separating out paragraphs in a numbered format. Include important dates such as when you and your partner started living together, your marriage date, the date of separation, and the names and birthdates of your children. Also, provide a brief background on any previous legal procedures or court processes you’ve been involved in, including any relevant orders made that pertain to the current application.
At the bottom of your affidavit is a jurat (see SCREENSHOT 3 below) – this is the section you must sign in the presence of a commissioner for oaths, which requires that you swear or affirm the truth and accuracy of the entire affidavit before you can officially sign it. The jurat must be included at the bottom of your affidavit before the exhibit attachments.
SCREENSHOT 3
Attaching Evidence to Your Affidavit as Exhibits
In support of the written statements and information in your affidavit, you are encouraged to attach evidence, known as 'exhibits'. These documents should be relevant and useful, serving as proof that the information you’ve provided is accurate and truthful. Attaching evidence to your affidavit, however, can be tricky.
“What should I include?” is a common question when preparing an affidavit. Although it might seem like everything is relevant to your case, it's important to be selective with the exhibits you attach. The goal is to provide a balanced presentation of evidence. Here are some examples of exhibits that may be relevant:
- Relevant court orders.
- Text messages confirming or helping prove a discrepancy.
- Doctor’s notes which may be relevant to your matter.
- Documents from your children’s school.
- Unpaid bills with specific amounts.Proof of support payments or requests for support.
- Emails or text messages around parenting time if there is a change.
It is important to ensure each document attached as an exhibit directly relates to a specific point in your affidavit – this makes it easier for the judge and opposing party to follow. While not every statement or position requires an exhibit, if you have a document that substantiates any claim in your affidavit, it should be included.
Exhibits should also be labeled in alphabetical order ('A', 'B', 'C', etc.). Let’s look at an example to help clarify this concept: If you are responding to an application in which the other party claims you did not pay child support, but you have evidence to the contrary, you should confirm:
- The dates of payment
- The amounts of payment
- The methods used (e.g. e-transfer, cheque, etc.).
You should also attach as an exhibit any evidence in support of those payments, such as a receipt or a transaction confirmation. Here is how you might structure this information in your written affidavit:
On or around June 1, 2023, I paid the claimant $500 in child support via e-transfer. Attached hereto and marked as Exhibit "A" is the e-transfer confirmation.
Your affidavit should clearly outline your position and conclude by reiterating what you are asking the court to do (i.e., the order you want the court to grant, whether from your application or in response to another application). Your affidavit is the primary document the judge will rely on to understand your position, so it must be clear and easy to follow. Ensure your requests are reasonable and justified, clearly explaining why you are seeking the court’s assistance.
Affidavit Pitfalls - What to Avoid
While we've covered the essentials of what you should include in your affidavit, it’s equally important to be aware of potential pitfalls. Certain elements can undermine the credibility of your document or even lead to legal repercussions. Here are some points you should steer clear of:
- Using privileged information – often, when having coaching meetings or consultations with lawyers, the advice they provide may seem like a good idea to include. Afterall, citing a lawyer makes it sound so much better…right? Wrong!
The advice you receive in these settings is considered 'privileged information,' which means it is confidential and protected by law. Disclosing this information can break the confidentiality agreement between you and your lawyer, known as 'breaching the privilege seal.' Additionally, avoid using any information from 'without prejudice' conversations or correspondence. This includes discussions during mediation or settlement, as well as any letters marked 'without prejudice' from the opposing side. Such communications are meant to encourage settlement and are protected under 'settlement privilege', meaning they cannot be used against the other party or included in your affidavit. - Emotion - family law matters are emotional; no one will deny that. However, when judges, opposing counsel, or the opposing party review your affidavit, emotional language can obscure the facts and make your arguments less persuasive. Just as it is important to be concise and clear, it is equally important to avoid emotional statements as they can be perceived as biased and may weaken your position.
- Secondhand information (aka “hearsay”) - your affidavit should only contain information you have firsthand knowledge of. If you were not part of a conversation or did not witness the incident that you are describing, you cannot use it. Similarly, if a friend or family member told you about something, you cannot use it as evidence, as your knowledge comes from another party.
- Rambling - verbal diarrhea is not helpful and will take away from the facts of your case. The importance of clarity cannot be overstated. To keep your affidavit well-organized and focused, you should also consider using headings to structure your evidence.
- Recordings, vulgar texts, and photos - the courts generally frown upon the use of recordings and inappropriate content. There may be occasions where text screenshots contain curse words necessary to illustrate your point. However, always be cautious with any inappropriate content in your affidavit. Nude photos or crude content should not be used. If such evidence is relevant, a written description of the material can suffice. The judge can then decide whether to review the actual evidence.
Crafting a compelling affidavit is no easy feat. With so much at stake, it can be stressful to ensure that you've included all the important facts and clearly and logically presented your position and evidence. That's where we come in! At Coach My Case, we empower self-represented litigants like you by offering the legal guidance and support needed to make informed decisions and effectively present your case. Contact us today for a free 20-minute consultation and let us help you ensure that your affidavit will stand up in court!
