What makes a good Affidavit in Ontario Family Law?
If you are involved in a family law matter, chances are you will need to draft an affidavit. Affidavits are versatile documents used at various stages of a proceeding, most commonly when bringing or responding to motions. While drafting an affidavit may seem straightforward, there are many potential pitfalls. This article outlines key aspects of affidavit drafting, provides useful tips, and highlights common mistakes to avoid.
What is an Affidavit?
Before delving into best practices, it is essential to clarify what an affidavit is. In the context of this article, we are specifically referring to Form 14A Affidavits in Ontario Family Law. The purpose of an affidavit varies depending on the context, but generally, it serves to present your version of events on a particular issue in a clear, concise, and persuasive manner.
The challenge lies in the lack of detailed guidance provided by Form 14A, which is essentially a blank document. While this allows for flexibility in drafting, it also means you must be strategic in how you structure and present your evidence.
Formal Requirements for an Affidavit in Family Law
Affidavits must comply with specific formal requirements, which vary depending on the court:
- First-Person Perspective: The affidavit must be written from the affiant’s point of view, clearly stating their own knowledge and experiences.
- Organized Paragraphs: Use numbered paragraphs to maintain clarity and allow easy reference.
- Consistent Page Numbering: Ensure all pages, including exhibits, are numbered in sequence, preferably in the top right corner.
- Clear Identification: Include the affiant’s full name, address, and occupation.
- Exhibits and Supporting Documents: Attach relevant documents as exhibits, clearly labeled and referenced in the affidavit. However, their inclusion does not automatically make them admissible as evidence.
- Sworn or Affirmed Statements: The affidavit must be sworn or affirmed before a commissioner for taking affidavits, such as a lawyer, notary, or court clerk.
- Signature and Witnessing: The affiant must sign the affidavit in the presence of the commissioner, who must also sign it.
- Court Compliance: Different courts have specific formatting and filing rules—ensure the affidavit adheres to these requirements.
Understanding the Context of an Affidavit
A well-drafted affidavit is purposeful and concise. Judges have limited time, and excessive detail, irrelevant statements, or inflammatory language can weaken your case.
The facts in an affidavit must be relevant (directly related to the issues before the court) and material (significant to the matter being decided). Courts are busy, and an ineffective affidavit which wastes time criticizing the other party or Including irrelevant information will do little except harm your case
Common Mistakes to Avoid While Drafting an Affidavit
Affidavits must only include admissible evidence. Avoid the following pitfalls:
- Speculation and Assumptions: Do not include guesses or opinions—stick to facts.
- Hearsay: Unless an exception applies, do not include statements made by someone else.
- Legal Arguments: Affidavits should present facts, not argue the law. It is up to the court to make determinations, if you do so in your affidavit it may be struck for conjecture.
- Irrelevant Information: Extraneous details can make the affidavit weaker and may be struck by the court.
- Inflammatory or Emotional Language: A neutral, factual tone is essential.
- Anonymous or Unverified Sources: Only include statements and documents from identified, credible sources.
Best Practices for Drafting Affidavits
To ensure clarity and effectiveness:
- Prioritize Key Information: Organize the affidavit logically, ensuring the most relevant facts are easy to locate.
- Use Specific Details: Include precise dates, times, and events to strengthen the affidavit’s credibility.
- Stay Objective: Keep opinions and emotions out of the document.
- Follow Court Formatting Rules: Each court has specific requirements regarding formatting and submission.
- Proofread and Review: Typos, inconsistencies, or unclear phrasing can undermine credibility.
- Use Headings Where Needed: For longer affidavits, use clear, neutral headings to improve readability.
Gathering and Presenting Evidence
After determining the purpose of the affidavit, collect supporting evidence such as emails, financial records, or text messages. If exhibits are included, ensure they are well-organized and referenced correctly within the affidavit. Courts may impose page limits, so prioritize the most relevant documents.
Structuring the Affidavit Effectively
The way an affidavit is structured should align with the motion or legal issue it supports. The most common and effective structures include:
- Chronological Order: Presenting facts in the order they occurred helps provide a clear narrative.
- Issue-Based Organization: Grouping facts by legal issue can be useful in complex cases.
- Severity-Based Presentation: In urgent matters, prioritizing the most significant facts first can be beneficial.
Regardless of the structure, clarity and logical flow are key to an effective affidavit.
Consequences of Improper Affidavits
Affidavits that include irrelevant, inflammatory, or speculative content may be struck from the record. Courts may also order special costs against a party submitting a frivolous or vexatious affidavit.
Additionally, making a false statement in an affidavit with intent to mislead is an indictable offence under section 131 of the Criminal Code, punishable by up to 14 years in prison.
Conclusion
Drafting an effective affidavit requires precision and attention to detail. Practice makes perfect, so seeking guidance from an experienced family law lawyer can help ensure that an affidavit is structured properly and includes only relevant and admissible evidence. By following these principles, you can enhance the clarity and persuasiveness of your affidavit, ultimately strengthening your case in court.
Written By Caidan Ubell