By Benjamin Szalay-Anderson, Alberta Legal Coach
When you apply to the court on any legal issue you need to convince a judge that your application should be granted. You can do this in two ways: evidence and argument. These two terms often get confused but, for your best chance at success, careful organization of both is essential. In this blog, we’ll explore the differences between evidence and argument, along with some of the basic rules. To help make this clearer, we’ll use an example that will carry us through the discussion and illustrate how these concepts work in practice.
Applying Evidence and Argument: An Example
First, our example – Taylor and Alex have agreed to separate, but they cannot agree on which school their two children should attend. September is fast approaching, and they have applied to the court to make a final decision. Taylor wants the children to attend Canada High School as it has specialized support for their children’s learning needs, but it is halfway across the city. The children have struggled in school over the last year, and Taylor feels the best way to get them back on track with their learning goals is to seek specialized help.
Alex wants the children to attend Southside High School because it’s close to home and will create the least disruption in their lives. It’s also the designated high school for their middle school, and many of their friends will be attending in September. Alex believes the children are doing fine in school and, if their grades have been affected, it’s due to the separation, which will soon be resolved. He thinks the best thing for the kids is a stable environment with familiar faces.
Distinguishing Argument from Evidence
While argument and evidence are often confused, it is important to understand the difference between them and their importance in persuading a judge.
An argument is a set of premises leading to a conclusion based on the evidence.
Evidence, on the other hand, is the actual facts or data that supports a claim.
The court makes decisions based on evidence, but it listens to the argument that explains why the evidence supports your position. We’ll discuss each of these in more detail below.
Argument
While your arguments are based on evidence, it's often best to develop your arguments first and then work backwards to gather the supporting evidence. This helps to keep everything organized and ensures that you only bring evidence you need. By doing so, you’ll keep the judge focused on your argument and reduce the chances of confusion, making sure your message is loud and clear. If you can’t convince the judge that your evidence supports your position, you won’t get the relief you're seeking—so outlining your arguments first is a logical strategy.
If evidence represents the facts about the situation, argument is the “why”. It's the reason why your evidence is relevant and why things should be decided in your favor.
Using our example, the two parents will need to convince the judge which school the children should attend. To decide, the judge will need to determine which school is in the child’s best interests, using the factors laid out in the Family Law Act and relevant case law.
Alex may argue that the stability of a designated school with friends in the community and a shorter commute time is in the best interests of the children. Alex could emphasize that any disruption to the children’s lives will only increase the harmful effects of the separation.
Taylor may argue that the kids have fallen behind and that they will need special support to catch up in their learning. Taylor could argue that the kids will be changing schools anyways due to the transition from middle school to high school and that this will give them an opportunity for a better education at a better school. Taylor may even want to bring a schedule showing how the commute and pickup/drop-off schedule could work if agreed upon by both parents.
By looking at any factors in statutes and reading the case law, you can know what you need to prove to the judge in any application. Working backwards from there you can then put together your arguments. Arguments fall into 1 of 2 categories:
- This is how things are, and the court’s decision should keep things the way they are.
- Or, this is how things are, and the court’s decision should change that.
In our example, Taylor will need to argue that:
- The children are struggling in school.
- The children are not likely to keep up in school if things continue as they are.
- And, it is in the children’s best interests for the court to change the way things are by sending them to Canada High School.
Alex will need to argue that:
- The children have struggled in school, but it is temporary,
- The children will do better in school in a stable environment with familiar friends and community.
- And, it is in the children’s best interests for the court to keep things the way they are.
Based on these arguments, both Taylor and Alex now know what they need to present as evidence to convince the judge of each of their three points, or to rebut the arguments of the other party.
Evidence
Evidence is the backbone of your application. If a judge is not satisfied that the facts reflect the situation as you describe it, then your arguments for why things need to change or stay the same will be less effective.
Evidence can be brought into court in three ways:
- Oral evidence through an affidavit.
- Documentary evidence through exhibits.
- And, live witness evidence.
These methods are allowed in court because they give the opposition a chance to respond to the evidence that you have presented. They also ensure that the evidence the court hears is properly recorded and remains consistent throughout the application process. If you stand up in front of a judge and present new evidence that the other side hasn’t seen, it’s unfair to the opposing party, who may not have the opportunity to respond. It can also confuse the judge, who must remain an impartial decision-maker. If the judge cannot clearly track your evidence, they may not grant your application. The best approach is to ensure that all the evidence you need to convince the judge is included in your affidavit.
What are Affidavits?
Affidavits are written statements made by the writer under oath about what they know to be true. Affidavits are heavily relied upon by the court as they are used to determine credibility. They must be served upon the opposing party so that they know what your evidence is and have an equal opportunity to respond.
Writing a good affidavit is a difficult skill, even for legal professionals, and how your evidence is presented goes a long way to having the judge understand your position and grant your application For additional tips and tricks on affidavit writing, check out our Guide to Writing an Affidavit in Family Law.
Good affidavits only contain facts in your own words and not arguments, opinions, or hearsay. Affidavits should also avoid using absolutes wherever possible. When preparing your affidavit, or live witness testimony, here are some examples of common pitfalls you should try to avoid:
Issue Type 1
Argument
Original Example
Alex: "There is no way I can make it to work on time if I must drop the children off at Canada High School."
Feedback:
This revised statement is factual and can be supported by objective evidence, such as a map showing travel times. Alex can then argue separately that the commute is too long and not in the children’s best interests.
Suggested Improvement:
Alex: "The commute to Canada High School is approximately 59 minutes during high traffic."
This revised statement is factual and can be supported by objective evidence, such as a map showing travel times. Alex can then argue separately that the commute is too long and not in the children’s best interests.
Issue Type 2
Opinion
Original
Taylor: "Canada High School is the best school for the children."
Feedback:
This is an opinion and not a fact. Instead of giving an opinion, Taylor should provide the judge with new, factual information that the judge can evaluate. This is much more useful to a judge because they need to be able to provide reasons to justify any final decision made.
Suggested Improvement:
Taylor: "Canada High School has the HELP program, which specializes in helping children who have fallen behind succeed in high school."
Issue Type 3
Hearsay
Original
Alex: "The children told me that they want to go to Southside High School as most of their friends will be attending that school."
Feedback:
This is a hearsay statement, which is generally inadmissible in court. Reporting what someone else said does not allow the judge to assess the truthfulness or context of the statement. It also prevents the other party from cross-examining the speaker. Avoid hearsay whenever possible.
Suggested Improvement:
Alex: "Southside High School is the designated high school for Southside Primary School. Many of the children’s friends from primary school will be attending Southside High School in September."
This statement presents objective facts the judge can evaluate without requiring the children as witnesses.
Issue Type 4
Absolutes
Original
Taylor: "I have always made the decisions when it comes to the children’s education."
Feedback:
This is an absolute statement and while it may be true, it is likely not. If Alex can prove they made even one decision about the children’s education, Taylor’s credibility may be undermined.
Suggested Improvement:
Taylor: "I have been the primary decision-maker regarding our children’s education."
This phrasing is more precise and harder to disprove, making it more persuasive in court.
The Role of Exhibits in Affidavits
In addition to your written statements, you can attach documentary evidence to your affidavit in the form of exhibits. Exhibits are external pieces of evidence that support why you know something to be true. Exhibits are attached to the end of the affidavit and referenced alphabetically within the document as Exhibit 'A' through 'Z'. Due to the nature of affidavits, exhibits are best presented as photographs or written evidence. Be mindful that affidavits have page limits, depending on their purpose, so ensure you stay within the allowed page count when filing with the court.
In the example above, Taylor may want to provide the children’s report cards and teacher comments to show that they have been struggling in the current system and need extra support to get back on track with their education. To illustrate how Taylor might include this information in her affidavit, here’s an example of how this might look:
Taylor: The children have received declining grades in their current school year. Attached hereto and marked as Exhibit “A” are the children’s final and mid-year report cards for the past 3 years.
Alex may also want to include this exhibit but provide different explanations or highlight different areas.
Without these report cards the court would hear both affidavits providing different interpretations of the facts, or different facts entirely. Providing objective criteria from an external source, like a report card, helps the court understand where your facts come from and why you believe them.
Exhibits are particularly effective when they are documents from third parties or were created during the time at issue in the application. Evidence produced after the relevant time period is more susceptible to manipulation, which may raise concerns about credibility.
Some examples of important exhibits to include are:
- Previous relevant court applications.
- Text messages.
- Reports or receipts.
- Bank statements.
- Or letters, emails, and other communications.
Our team of skilled legal coaches at Coach My Case has extensive experience crafting detailed and precise affidavits that effectively support your arguments. Whether you're dealing with complex financial disclosures or intricate personal details, professional guidance ensures your affidavit meets legal standards and fully represents your interests. We are committed to safeguarding your rights throughout this process. Don’t navigate this intricate task alone—book a free 20-minute consult today to discuss your needs and ensure your affidavit is properly prepared and aligned with your legal goals.
