Difference between revisions of "How Do I Prepare an Affidavit?"
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{{JP Boyd on Family Law How Do I TOC|expanded=affidavits}} | |||
{{JP Boyd on Family Law TOC}} | {{OKCOPY}} | ||
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An affidavit is a written statement, made on oath or affirmation, about facts that are personally known to the person making the affidavit, the ''deponent''. Because an affidavit is sworn to be true or is affirmed to be true, it is evidence of the facts that it sets out, just as if the facts were given in oral evidence at a trial. Affidavits are formal legal documents. | An affidavit is a written statement, made on oath or affirmation, about facts that are personally known to the person making the affidavit, the ''deponent''. Because an affidavit is sworn to be true or is affirmed to be true, it is evidence of the facts that it sets out, just as if the facts were given in oral evidence at a trial. Affidavits are formal legal documents. | ||
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*'''Provincial Court:''' If your proceeding is in the Provincial Court, the form you must use is Form 17 and the rules about affidavits are set out in Rule 13 of the Provincial Court (Family) Rules. | *'''Provincial Court:''' If your proceeding is in the Provincial Court, the form you must use is Form 17 and the rules about affidavits are set out in Rule 13 of the Provincial Court (Family) Rules. | ||
==Formal | ==Formal requirements== | ||
The text of an affidavit is set out in numbered paragraphs. It's a good idea to state who you are and how you have personal knowledge of the facts that you are describing in the first paragraph of your affidavit (this is taken care of in the form required by the Provincial Court), and to say why you are swearing the affidavit in the second paragraph. For example, in the first paragraph you must say something like: | The text of an affidavit is set out in numbered paragraphs. It's a good idea to state who you are and how you have personal knowledge of the facts that you are describing in the first paragraph of your affidavit (this is taken care of in the form required by the Provincial Court), and to say why you are swearing the affidavit in the second paragraph. For example, in the first paragraph you must say something like: | ||
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and was made on 1 April 2013</blockquote> | and was made on 1 April 2013</blockquote> | ||
Once your affidavit is done, you must have it ''notarized''. Affidavits can be notarized by lawyers, notaries public and certain court clerks, or anyone else who is authorized to take oaths in British Columbia. The lawyer or notary public will ask you whether you understand the contents of your affidavit and then ask you to swear an oath or affirm that the contents are true. If you say yes, the lawyer or notary will ask you sign your name to the affidavit and will watch as you sign the document. The lawyer or notary will then sign his or her name and provide certain additional information about where the affidavit was notarized and the date and so forth. The lawyer or notary will ask you to produce government-issued photo identification, like a driver's licence, to prove that you are who you say you are. | Once your affidavit is done, you must have it ''notarized''. Affidavits can be notarized by lawyers, notaries public and certain court clerks, or anyone else who is authorized to take oaths in British Columbia. The lawyer or notary public <span class="noglossary">will</span> ask you whether you understand the contents of your affidavit and then ask you to swear an oath or affirm that the contents are true. If you say yes, the lawyer or notary <span class="noglossary">will</span> ask you sign your name to the affidavit and <span class="noglossary">will</span>watch as you sign the document. The lawyer or notary <span class="noglossary">will</span> then sign his or her name and provide certain additional information about where the affidavit was notarized and the date and so forth. The lawyer or notary <span class="noglossary">will</span> ask you to produce government-issued photo identification, like a driver's licence, to prove that you are who you say you are. | ||
After you've had your affidavit notarized, make at least four copies. The original is filed in court and another copy or two, depending on the circumstances, must be sent to the other side. Make sure you keep an extra copy for yourself! | After you've had your affidavit notarized, make at least four copies. The original is filed in court and another copy or two, depending on the circumstances, must be sent to the other side. Make sure you keep an extra copy for yourself! | ||
==Telling Your | ==Telling Your story== | ||
Following the introductory paragraph, tell your story in an orderly manner. Remember to keep things as simple as possible and avoid irrelevant information; the easiest way to do this is to ask yourself if a stranger would understand what you've written. If you don't think a stranger would understand what you're talking about, you should probably rewrite your affidavit! | Following the introductory paragraph, tell your story in an orderly manner. Remember to keep things as simple as possible and avoid irrelevant information; the easiest way to do this is to ask yourself if a stranger would understand what you've written. If you don't think a stranger would understand what you're talking about, you should probably rewrite your affidavit! | ||
Your goal is also to explain things in an easy-to-understand way for the judge. The judge will not know who "Phil" is unless you've introduced Phil somewhere else in your affidavit. Nor will the judge understand what "the other car" means, unless you've already described which cars you have and who owns them. You must not assume that the judge knows everything about you. The judge won't. Again, ask yourself if a stranger would understand your story. | Your goal is also to explain things in an easy-to-understand way for the judge. The judge <span class="noglossary">will</span> not know who "Phil" is unless you've introduced Phil somewhere else in your affidavit. Nor <span class="noglossary">will</span> the judge understand what "the other car" means, unless you've already described which cars you have and who owns them. You must not assume that the judge knows everything about you. The judge won't. Again, ask yourself if a stranger would understand your story. | ||
In order to make things as simple as possible, I usually break my affidavits down into four basic sections following the initial introductory paragraph: | In order to make things as simple as possible, I usually break my affidavits down into four basic sections following the initial introductory paragraph: | ||
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Remember to tell your story in the first person. It is you who is telling your story, and you are "me," "myself" or "I," not "the Claimant" or "the Respondent." | Remember to tell your story in the first person. It is you who is telling your story, and you are "me," "myself" or "I," not "the Claimant" or "the Respondent." | ||
==Rules about | ==Rules about content== | ||
Only certain kinds of information are permitted in an affidavit. If your affidavit is written for use at a trial, you cannot describe things you believe are true or have heard from someone else. You can only set out information that you have actual, personal knowledge of. If you are writing your affidavit for the purposes of an interim application, however, you may include both things you believe to be true as well as hearsay. | Only certain kinds of information are permitted in an affidavit. If your affidavit is written for use at a trial, you cannot describe things you believe are true or have heard from someone else. You can only set out information that you have actual, personal knowledge of. If you are writing your affidavit for the purposes of an interim application, however, you may include both things you believe to be true as well as hearsay. | ||
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The easy way to spot opinion evidence is by sentences that start with "I think..." or "I believe that..." For example, stating "I believe that Sally is not a good mother because she spends too much time in the park" is really your opinion about Sally's parenting skills; it is not a statement of fact and is not allowed in your affidavit. | The easy way to spot opinion evidence is by sentences that start with "I think..." or "I believe that..." For example, stating "I believe that Sally is not a good mother because she spends too much time in the park" is really your opinion about Sally's parenting skills; it is not a statement of fact and is not allowed in your affidavit. | ||
===Expressions of | ===Expressions of emotion=== | ||
A lot of people want to put everything into their affidavits, including how they feel about things or how they reacted to something. Don't do this. The court won't pay much attention to it, and you risk the court having a bad impression of you rather than of your ex. Good lawyers will carefully winnow out statements like "I was shocked and appalled that Bob would actually do such a thing," and you should get rid of that sort of thing as well. | A lot of people want to put everything into their affidavits, including how they feel about things or how they reacted to something. Don't do this. The court won't pay much attention to it, and you risk the court having a bad impression of you rather than of your ex. Good lawyers <span class="noglossary">will</span> carefully winnow out statements like "I was shocked and appalled that Bob would actually do such a thing," and you should get rid of that sort of thing as well. | ||
The court does not care how something made you feel; the court is interested in facts. Overblown and hysterical statements will undermine the credibility the court is prepared to extend to you. Statements like "I could see the anger in her eyes as she came at me" or "I couldn't believe what a rotten person Sally was" will not go over well in court. | The court does not care how something made you feel; the court is interested in facts. Overblown and hysterical statements <span class="noglossary">will</span> undermine the credibility the court is prepared to extend to you. Statements like "I could see the anger in her eyes as she came at me" or "I couldn't believe what a rotten person Sally was" <span class="noglossary">will</span> not go over well in court. | ||
==="Never" and " | ==="Never" and "always"=== | ||
Avoid using the words "never" and "always," or any other absolute statement of frequency, as it is rarely the case that something always happened or never happened. Saying "Bob never helped with the children" is an invitation to the court to discount what you're saying. Even if you did 99% of the work with the children, Bob is certain to have done something with them, and that means that "never" and "always" aren't true. | Avoid using the words "never" and "always," or any other absolute statement of frequency, as it is rarely the case that something always happened or never happened. Saying "Bob never helped with the children" is an invitation to the court to discount what you're saying. Even if you did 99% of the work with the children, Bob is certain to have done something with them, and that means that "never" and "always" aren't true. | ||
Just as over-the-top statements of emotion will undermine your credibility, so will using statements that are as absolute as "always" and "never." Instead of words like this, just say "I did virtually all of..." or "Sally rarely helped with..." | Just as over-the-top statements of emotion <span class="noglossary">will</span> undermine your credibility, so <span class="noglossary">will</span> using statements that are as absolute as "always" and "never." Instead of words like this, just say "I did virtually all of..." or "Sally rarely helped with..." | ||
==Exhibits== | ==Exhibits== | ||
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</ol> | </ol> | ||
Each separate exhibit is marked as an exhibit and shows which exhibit it is. Lawers and notaries public will have a stamp that they use to give the basic information. The stamp says something like this: | Each separate exhibit is marked as an exhibit and shows which exhibit it is. Lawers and notaries public <span class="noglossary">will</span> have a stamp that they use to give the basic information. The stamp says something like this: | ||
<blockquote><blockquote>This is Exhibit "___" in the Affidavit of _________________ , sworn before me at _______________________ , British Columbia, this ___ day of ___________ , 20_____ .</blockquote></blockquote> | <blockquote><blockquote>This is Exhibit "___" in the Affidavit of _________________ , sworn before me at _______________________ , British Columbia, this ___ day of ___________ , 20_____ .</blockquote></blockquote> | ||
with a space for the lawyer or notary's signature, and the phrase "A Commissioner for the taking of Oaths for the Province of British Columbia." Filled out, the stamp will read like this: | with a space for the lawyer or notary's signature, and the phrase "A Commissioner for the taking of Oaths for the Province of British Columbia." Filled out, the stamp <span class="noglossary">will</span> read like this: | ||
<blockquote><blockquote>This is Exhibit "'''D'''" in the Affidavit of '''Jane Alice Doe''', sworn before me at '''Nanaimo''', British Columbia, this '''20th''' day of '''March''', 20'''13'''.</blockquote></blockquote> | <blockquote><blockquote>This is Exhibit "'''D'''" in the Affidavit of '''Jane Alice Doe''', sworn before me at '''Nanaimo''', British Columbia, this '''20th''' day of '''March''', 20'''13'''.</blockquote></blockquote> | ||
The important thing about exhibits is that they are hearsay. Just because you've attached something as an exhibit doesn't make the statements made in the exhibit true. While business information like a bank statement or a receipt will be taken as true, subjective information, like the contents of a letter from your mother, brother, friend or co-worker won't be automatically accepted by the court. | The important thing about exhibits is that they are hearsay. Just because you've attached something as an exhibit doesn't make the statements made in the exhibit true. While business information like a bank statement or a receipt <span class="noglossary">will</span> be taken as true, subjective information, like the contents of a letter from your mother, brother, friend or co-worker won't be automatically accepted by the court. | ||
This is important to understand, because lots of people want to attach testimonials and other sorts of information to their affidavits to make them look as good as possible, or to make their ex look as bad as possible. "Sally is the best mother I have ever seen, she obviously treasures her children and they mean the world to her," or "Bob is a terrible parent, who used to throw rocks at the children when they were infants to see if they'd flinch." What will the court get out of such obviously biased information? Not a lot. | This is important to understand, because lots of people want to attach testimonials and other sorts of information to their affidavits to make them look as good as possible, or to make their ex look as bad as possible. "Sally is the best mother I have ever seen, she obviously treasures her children and they mean the world to her," or "Bob is a terrible parent, who used to throw rocks at the children when they were infants to see if they'd flinch." What <span class="noglossary">will</span> the court get out of such obviously biased information? Not a lot. | ||
The letter from your mother is hearsay, just as if you'd said what your mother told you in your affidavit. The court will accept as true the fact that your mother wrote the letter, but it won't necessarily accept what your mother says in the letter as true. If what your mom has to say is so important, get her to execute an affidavit an affidavit of her own. That is something that the court will pay attention to. | The letter from your mother is hearsay, just as if you'd said what your mother told you in your affidavit. The court <span class="noglossary">will</span> accept as true the fact that your mother wrote the letter, but it won't necessarily accept what your mother says in the letter as true. If what your mom has to say is so important, get her to execute an affidavit an affidavit of her own. That is something that the court <span class="noglossary">will</span> pay attention to. | ||
==Summary== | ==Summary== | ||
Be calm, be cool, be collected. Tell your story in a logical, orderly manner so that a judge who doesn't know you from a hole in the ground will understand what the heck you're talking about, what you want and why you want it. Avoid inappropriate expressions of emotion and stick to those facts that you have personal knowledge of when you can. You want to come across as a sane, reasoning human being, not a hysterical jumble of raw emotion. | Be calm, be cool, be collected. Tell your story in a logical, orderly manner so that a judge who doesn't know you from a hole in the ground <span class="noglossary">will</span> understand what the heck you're talking about, what you want and why you want it. Avoid inappropriate expressions of emotion and stick to those facts that you have personal knowledge of when you can. You want to come across as a sane, reasoning human being, not a hysterical jumble of raw emotion. | ||
If you have any documents that support the statements you're making, attach them to your affidavit as exhibits. Use documents that are neutral and unbiased, like a bank statement or an appraiser's report, but avoid inflammatory and subjective documents like letters from friends and relatives. | If you have any documents that support the statements you're making, attach them to your affidavit as exhibits. Use documents that are neutral and unbiased, like a bank statement or an appraiser's report, but avoid inflammatory and subjective documents like letters from friends and relatives. | ||
Above all, when you're done, ask yourself this: would a complete stranger know what I'm talking about? If you can't answer that question, give your affidavit to a complete stranger, your next-door neighbour for example, and find out! | Above all, when you're done, ask yourself this: would a complete stranger know what I'm talking about? If you can't answer that question, give your affidavit to a complete stranger, your next-door neighbour for example, and find out! | ||
{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}} | |||
{{JP Boyd on Family Law Navbox|type=how}} | {{JP Boyd on Family Law Navbox|type=how}} | ||
[[Category:How Do I? | |||
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|title = JP Boyd on Family Law | |||
|author = [[JP Boyd|John-Paul Boyd]] and Courthouse Libraries BC | |||
}} | |||
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