What is an affidavit and what is it used for?
By Camille Boyer, Calgary Family Lawyer
An affidavit is a document frequently prepared in litigation to provide evidence regarding the matter being determined. This is generally either in lieu of, or supplementary to oral evidence given under oath. In other words, an affidavit is essentially a written version of the evidence you could expect to give when testifying in Court.
Why do I need an affidavit?
Affidavit evidence is quite common in most family law matters. It is your opportunity to “tell your side of the story”. It is also an efficient way to provide relevant information to the Court, including documents or other materials called “exhibits”. Providing an affidavit rather than oral testimony allows the presiding Judge to review your evidence prior to or during a hearing, and to refer back to it when making a decision.
In some instances, affidavit evidence will not be sufficient for the Court to make a decision. This is often the case in situations where there are conflicting stories being told by the litigants. For example, if the father claims in an affidavit that the mother is abusing drugs, and the mother denies the allegation in her affidavit, the Judge is likely unable to determine who is telling the truth using only the affidavits. If the allegation is material to the matter being heard – for example, if it relates to the mother’s ability to care for their children – then oral testimony will be necessary. Once the Judge hears the two parties testify and be cross-examined, the Judge will be in a better position to assess credibility and determine whose version the Judge believes.
What should be included in an affidavit?
An affidavit should state clearly who you are, identify your role in the litigation (e.g., plaintiff/defendant), identify other relevant parties (e.g., children, spouse), and any other particulars or background that the Court should know (e.g., date of marriage or cohabitation, date of separation).
Beyond the basics, an affidavit is an opportunity to provide evidence which is relevant and material to the matter being heard. Some family law litigants will include irrelevant or inflammatory information that has nothing to do with the matter at hand, but this type of “mudslinging” should be avoided. For example, infidelity is generally not relevant to the legal remedies you may be entitled to in your family law matter, but it may be very relevant to the reasons the relationship ended or the pain and hurt feelings that resulted. Including details of the infidelity in an affidavit is often not helpful to the Judge deciding your matter. In some circumstances, the Court may award costs against you for including unnecessarily inflammatory or irrelevant information.
A good starting point when deciding what information to include in an affidavit is to ask yourself what the legal test is for the matter being heard. For example, parenting disputes are determined by applying the “best interests of the child” test. Therefore, the type of information that should be included in a parenting affidavit should be related to the child or children in question. How old is the child? Do they have any special needs? What type of care, schedules, routines, or activities has the child typically taken part in? And, if you are proposing a certain schedule or other Order in the Application, why does your proposal meet the needs of the child, and why is it in their “best interests”?
When dealing with financial matters such as support or property, details regarding incomes, assets, and debts in question will need to be included in an affidavit. In addition, documentary evidence such as tax returns, bank statements, or appraisals will likely be necessary. The question to ask yourself here is: what evidence or information will the Judge need to make a decision?
One thing to avoid is including arguments in an affidavit. The affidavit is simply the evidence – who, what, where, and when. Argument is the “why”. Once you have an affidavit with the relevant evidence included, you can make arguments by applying the evidence to the law.
What is an Exhibit?
Exhibits are generally included in an affidavit as they provide context or substantiation to the evidence. For example, if stating in an affidavit “my income is $50,000”, you may also want to append an exhibit proving your income, such as paystubs or tax returns. The statement regarding your income on its own likely does not provide enough information to assist the Court in making a decision.
Exhibits can also show the Court something that cannot be fully explained or covered in words alone. For example, if describing the suitability of your home to the Court to be granted parenting time with a child, simply stating “my home is suitable for a child” may not be as compelling as appending photographs of the nursery/bedroom, toys, clothing/diaper supplies, backyard, or other amenities.
Exhibits are often an efficient means of providing copies of relevant communications to the Court. Rather than explaining the back-and-forth communications, it is often simpler to append copies of letters, emails, or text messages to an affidavit. This also provides the Court with the source material, rather than a paraphrasing or synopsis.
Are there any formatting requirements or templates to assist me in drafting an Affidavit?
The Alberta Courts website is a good starting point to download templates for most Court documents, including a blank Affidavit. In addition, it is important to review Practice Note 2 or any other applicable Practice Notes to ensure the length, formatting and other technical requirements are met. Additionally, the Rules of Court set out the requirements litigants should be aware of when drafting an Affidavit to submit to the Court.
One of the many benefits of working with a family lawyer is that they have a lot of experience preparing and writing affidavits. To learn more about to preparing for court, contact the family lawyers at Crossroads Law to schedule your free consultation.