Why an affidavit?:
I am sometimes asked in Court about the quality of an affidavit that a client / affiant swears to. The affidavit is a sworn statement of an affiant that the client swears is the truth and nothing but the truth. In our common law system, an affidavit is sworn evidence, which the Judge relies on in making a decision – either on a motion or even at trial. At trial, I can examine or cross-examine a witness about the contents of a previous affidavit.
A lawyer can only guide an affiant in stating the rules and norms to be followed in completing an affidavit; in ensuring that the story is well told to the Judge. Ultimately, the affiant is the one taking the responsibility to ensure that the contents and absolutely true and that the facts as described actually happened the way in which they were said to occur.
Judge often frown on a letter of support written to complement a factual issue given in an affidavit. A letter is just that – a letter that is not sworn evidence. The effect and impact of the message from such a letter would be so much more if the letter writer were to produce a sworn statement in the form of an affidavit. In such a case, the primary affiant’s affidavit will be supported by another affidavit.
Contents of an affidavit:
An affidavit is a sworn written statement made under oath and may be required when someone needs to give evidence to the courts. An affidavit can be required by anyone at anytime with relevant information to the case in question. Often affidavits are needed for an interim order, change, suspend or terminate an order, enforce an agreement, set aside all or part of an agreement, or respond to an application.
Writing an affidavit is like telling a story of your version of the events you’ve personally experienced and it’s important to give as much detail as possible. If you’re a parent to the matter, it’s important to include details such as, when you married, where you lived, who provided for the children, what your role was in the relationship, when and why the relationship ended, and evidence to support your claims. If you’re not a party to the matter, important things to include are who, and how you’re related to the matter. If you’re responding to an affidavit you must state what paragraphs you agree with and respond to the paragraphs you don’t agree with and provide a reason why you don’t agree.
There are strict rules that must be followed when writing an affidavit. Contents of the affidavit must be clear, concise, truthful, factual, and relevant to the case. You must tell the truth; facts in an affidavit must be firsthand knowledge of the author that they heard, saw, did, or said. You may attach “exhibits” to support any evidence given such as text messages, bank statements, emails or pictures. Things to avoid when writing an affidavit are, opinions, emotions, or implying or accusing someone else of an action you cannot provide evidence for.
When finalizing an affidavit, you must ensure there are no mistakes or errors, make any necessary changes, and have someone proofread it. When you’re ready to sign it, you must take it to a commissioner to have it commissioned, if you have any “exhibits” they must also be commissioned. You’ll need to make as many copies as there are parties in the matter, serve all parties and then file the original affidavit with the courts.
If you need assistance writing an affidavit contact us at Shankar Law Office. We offer legal services in Bruce, Grey and Huron counties, including Port Elgin, Southampton, Owen Sound, Meaford, Wiarton, Hanover, Walkerton, Markdale, Goderich, among other places.
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