How Do I Prepare an Affidavit?

From Clicklaw Wikibooks

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.

  • Supreme Court: If your family law action is in the Supreme Court, the form you must usually use is Form F30 and the rules about affidavits are set out in Rule 10-4 of the Supreme Court Family Rules.
  • Provincial Court: If your family law action is in the Provincial Court, the form you must usually use is Form 17 and the rules about affidavits are set out in Rule 13 of the Provincial Court Family Rules. The form is available online. See the Provincial Court Forms section.

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:

1. I am the Claimant in this matter, and as such have personal knowledge of the facts hereinafter deposed to.

In the second paragraph you might say:

2. I make this my affidavit in support of my application by Notice of Application dated 1 April 2017.

If you are having a friend or relative make the affidavit, the first paragraph might read:

1. I am the sister of the Claimant in this matter, and as such have personal knowledge of the facts hereinafter deposed to.

Every page of your affidavit must be numbered, including each page of any exhibits you might have attached. An exhibit is a document, including a picture, that is included in an affidavit to support to the facts described in the affidavit.

In the Supreme Court, you must put, in the upper-right hand corner of the first page, the name of the person swearing the affidavit, the sequential number of the affidavit in the affidavits sworn by that person so far, and the date the affidavit was sworn on. For example, if you are Jane Alice Doe, and this is your third affidavit, you would put this:

This is the 3rd affidavit

of J.A. Doe in this case

and was made on 1 April 2017

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 to sign your name to the affidavit and will watch as you sign the document.

The lawyer or notary will then sign their 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.

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 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!

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.

In order to make things as simple as possible, I usually break my affidavits down into four basic sections following the initial introductory paragraph:

  • Application: State what you're asking the court for. If you're responding to an application, tell the court your position on each of the claims the applicant is making.
  • Background: Describe who you are, who the other side is, when your relationship started and stopped, who your children are and how old they are, when the court proceeding started, and any significant orders that have been made since litigation started.
  • Circumstances: Describe the immediate circumstances that triggered the application to court and anything significant that's happened since. This should be the part where you provide the facts in favour of your application or in opposition to the applicant's application.
  • Summary: If necessary summarize your position and perhaps describe the order that you want the court to make.

Affidavits drafted by me often look something like this:

1. I am the Claimant in this matter and as such have personal knowledge of the facts hereinafter deposed to.
Application
2. In my application, by Notice of Application dated 15 January 2014, I seek an order that the Respondent be restrained from removing the children, Sally Ann Doe, born on 1 January 2012, and John Fred Doe, born on 1 January 2013, from Kelowna, British Columbia, and an order that the Respondent pay support to me for the benefit of the children.
3. In the Respondent's application, by Notice of Application dated 1 January 2014, he seeks an order that I pay spousal support to him. I oppose the Respondent's application because he works full-time and is self-sufficient.
Background
4. I am 32 years old and am presently employed as an accountant by the firm Smith Smith and Smith. I earn approximately $42,000 per year.
5. The Respondent is 34 years old and works full-time as a bricklayer with ABC Contracting. He earns about $38,000 per year.
6. The Respondent and I met in the summer of 2004, and moved in together on 1 January 2005. We lived together in a unmarried relationship until 1 January 2016, when the Respondent left our home.
7. The Respondent and I have two children, Sally Ann Doe, who is 5 years old and in Grade 1 at Foggy Bottom Elementary, and John Fred Doe, who is 4 years old and in pre-school at ABC Community Centre.
8. I started this action on 1 July 2016, when I filed my Notice of Family Claim. I am asking for an order that the Respondent and I share parental responsibility for the children, that the children live mostly with me and that the Respondent have parenting time with the children every other weekend and overnight every Wednesday. I also seek an order that the Respondent pay child support to me for the benefit of the children.
9. On 1 September 2016, Master Smith made an order that the Respondent and I share parental responsibility for our children. The Master did not make an order for parenting time or child support, but the Respondent has been seeing the children on weekends and has been paying $200 per month to me as child support.

...and so on. Once I'm done introducing the basic background of the parties, I'll describe the events that led the applicant to be making the specific application before the court.

Circumstances of application
21. On 25 December 2016, the Respondent had Sally and John from noon until 7:00pm. We had agreed that he would return the children to my home at that time.
22. The Respondent did not return the children as we agreed. I phoned him to find out what was wrong at 8:00pm. He told me that he was keeping the children until 27 December 2016 because his family wanted to see them on Boxing Day. He also said that he and the children would be moving to Calgary, Alberta.
23. The Respondent has family in Calgary. I am afraid that he intends to remove the children from Kelowna, where they have spent all of their lives and where they have family and friends.

...and so on. If necessary, usually when an affidavit is particularly long or the facts are particularly complicated, I may summarize the orders I'm asking for and why I'm asking for them.

Summary
45. As a result of the Respondent's conduct I believe that the Respondent may decide to take the children to Calgary. I seek an order that the Respondent be restrained from removing our children from Kelowna without my express permission or the further order of this Honourable Court.

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 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.

Hearsay

Hearsay means saying anything you don't know yourself but have learned from someone else. It also includes repeating someone else's statements in your own affidavit. It's hearsay, for example, to say "Sally told me that she went to the park at noon on Saturday." It is not hearsay to say "I saw Sally in the park at noon on Saturday" or "Sally and I went to the park and noon on Saturday."

Hearsay is permitted in affidavits used for interim applications. However double hearsay is not, nor is anonymous hearsay.

Double hearsay is saying something like "Frida told me that Sally said she was in the park at noon on Saturday." In other words, double hearsay is stating as a fact what someone told someone else.

Anonymous hearsay is saying what someone told you but without identifying the person who told you, like "Someone told me that Sally was in the park at noon on Saturday", or "I have been advised that Sally was in the park at noon on Saturday, but I cannot identify the person who told me that she was in the park".

Opinions

The other thing that is generally not permitted in an affidavit is opinion evidence. Only people with special, recognized skills, like doctors or engineers or psychologists are allowed to write about their opinions in affidavits. Again, some opinion evidence is permitted in affidavits used for interim applications, however it is never permitted in affidavits prepared for trial.

The easy way to spot opinion evidence is by sentences that start with "I think..." or "I believe that..." For example, saying "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 emotion

A lot of people want to put everything in 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." 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 was disgusted to see Sally in the park on Saturday," "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.

"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.

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 those, just say "I did virtually all of..." or "Sally rarely helped with..."

Exhibits

Exhibits are documents that you attach to your affidavit, usually to support some point you're making in your affidavit. If, for example, you say that your income is $42,000 per year, you might want to attach your most recent T4 slip or your most recent income tax return to show that your income is in fact $42,000 per year.

Exhibits can be almost anything: a receipt, a printout of your child's school's website, a letter, a doctor's note, a company search result, a report card, a speeding ticket, a photograph, an appraisal, a bank statement, a Valentine's Day card... pretty much anything. If something can be reduced to paper, it can be an exhibit.

When you attach an exhibit, you have to introduce it in your affidavit. You can't just attach reams of documents to the back. You have to explain what the document is in your affidavit and say that the document you are attaching is a "true copy" of the original. Each exhibit is identified sequentially by a letter, "A," "B," "C," and so forth. For example:

16. I have a lovely home on two acres of land. There are three bedrooms, a sauna, an outdoor swimming pool and a private petting zoo for when Michael comes over. Attached to this my Affidavit as EXHIBIT "G" are true copies of photographs of my home.
17. My home is worth about $350,000. Attached to this my Affidavit as EXHIBIT "H" is a true copy of the 2017 BC Assessment for my home.

Each separate exhibit is marked as an exhibit and shows which exhibit it is. Lawyers and notaries public will have a stamp that they use to give the basic information. The stamp says something like this:

This is Exhibit "___" in the Affidavit of _________________ , sworn before me at _______________________ , British Columbia, this ___ day of ___________ , 20_____ .

The stamp also provides 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:

This is Exhibit "D" in the Affidavit of Jane Alice Doe, sworn before me at Nanaimo, British Columbia, this 20th day of March, 2017.

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.

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. For example, "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.

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 prepare an affidavit of her own. That is something that the court will pay attention to.

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.

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!


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Thomas Wallwork, May 9, 2017.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.


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