Affidavits
You might need to write an affidavit as part of your court case. An affidavit is a written statement of facts that you swear are true. Affidavits are often used as evidence to support your case when you are applying for interim (temporary) orders or consent orders. (You can’t usually rely on affidavits to get final orders, unless you both consent to the order.). Rather than testifying in the witness box, you can submit an affidavit to the court. A witness may also swear an affidavit on an interim or consent order application, so long as the other party doesn’t want to question them about their evidence. It is important that an affidavit be properly written so it can help the judge make a decision.
DIY
Take a look at our sample affidavit to get an idea of what one looks like if you are unfamiliar with it.
Writing Affidavits
Since the affidavit is used as evidence in court, there are strict rules on what you can write in your affidavit. Affidavits must provide information that is true and relevant.
- Truth: Everything within your affidavit must be true to the best of your knowledge. Lying in your affidavit will hurt your case. If you have a doubt about whether something is true, you probably should not include it in your affidavit.
- Relevance: Don’t include facts that aren’t related to the issues in your case. For example, if your application is for child support, don’t include the facts about your former spouse’s extramarital affairs.
Hearsay and Opinion Statements
The general rule is that hearsay and opinion statements are not allowed in your affidavit. Hearsay is information you learned from someone else but you don’t have first-hand knowledge of it.
Hearsay
Hearsay is information you learned from someone else but you don’t have first-hand knowledge of it.
“Jane Smith told me she biked to work yesterday” is hearsay.
But, “I saw Jane Smith arriving at work on her bike yesterday” is not hearsay.
The exception to the no hearsay rule is when you are writing an affidavit for an interim order.
Hearsay in an affidavit for an interim order must have:
- the name of the person who told you the information
- when that person told you the information
- a statement telling the reader that you believe the statement to be true
For example, “My neighbour, Sandra Young, told me on July 12, 2015, that she saw my ex-spouse arrive at home after midnight the night before. I believe her statement is true.”
Opinions
Avoid providing your opinion in your affidavit. Affidavits should be statements of facts not personal opinions.
For example, an opinion statement would be, “I think my child loves chocolate ice cream.”
You can’t include this but you can include, “My child asks for chocolate ice cream every weekend.”
Sometimes, opinions can be written to look like facts: “He is a bad father”
The judge will likely wonder how you can know he is a bad father. Try to just stick to the facts.
Instead write: “I have given him many opportunities to visit the children or to have phone conversations with them but he has refused to do so. To date he has not financially supported the children. I asked him to help pay for their hockey lessons but he has refused.”
Reading this, a judge can come to their own conclusion that he hasn’t been a very good father. Generally, only experts are allowed to state their opinions or what they believe.
Resources
See Affidavits from Family Law in BC, Prepare the Affidavits from SupremeCourtBC.ca and JP Boyd’s Prepare an Affidavit.
Formatting Affidavits
The Affidavit can vary in length from one page to multiple pages. Keep your affidavit as short as possible. The facts are set out in paragraphs with each paragraph numbered on the left side. It is best to keep your paragraphs short. Limit one idea per paragraph. Spacing should be set at least 1.5 and a space should separate paragraphs. Never use a font smaller than 10 or larger than 12 for the main body of the text. A backing sheet should be the last page in your affidavit if you’re applying in the Supreme Court.
Lawyer’s Tips
Both the Supreme and Provincial Courts have Forms for you to use for your affidavits
Refer to Provincial Forms Chart or the Supreme Forms Chart to see which form you need.
Exhibits
When you want to support a statement in your affidavit with a document, you can attach it as an exhibit. Anything that can be printed on paper can become an exhibit: income tax return, emails, receipts, photographs, prescription etc.
| Fact | Exhibit |
|---|---|
| As of July 12, 2015, I have $30,000 in my TD bank account. | Bank statement |
| I have been suffering from severe headaches for the past three months. | Doctor’s note; prescription |
The judge will not automatically accept every exhibit; it will depend on the nature of the exhibit. Some exhibits may need more support to be admitted into evidence. You should avoid attaching expert reports to your affidavit. Instead, ask the experts to swear their own affidavits and attach the reports to their affidavits.
Attaching an Exhibit
If you want to support a fact in your affidavit with an exhibit, you must refer to it in your affidavit. Each exhibit should be given a letter and referred to in alphabetical order. The first exhibit you refer to in the affidavit will be lettered ‘A,’ the second, ‘B,’ and so on. References to the exhibit should be typed in bold.
As of July 12, 2015, I have $30,000 in my TD bank account. Attached to this, my affidavit as Exhibit A, is a true copy of my TD bank
Attach all your exhibits at the end of your affidavit. If your exhibit has multiple pages, number the pages. When you bring your affidavit to the commissioner to get it sworn, also bring the exhibits so they can stamp it.
Swearing the Affidavit
To “swear” means that you promise the information presented in the affidavit is true. Sign it in front of a commissioner who will also sign it. Lawyers and public notaries are commissioners. If you don’t know how to find a commissioner, try calling your local court registry for help.
Correcting a Mistake
If you would like to correct a minor mistake after you have signed and sworn your affidavit, you have to take your affidavit to a commissioner and do the following:
- Correct each mistake in handwriting on the affidavit in front of the commissioner
- Initial each correction (the commissioner must also initial each correction)
- Get the affidavit sworn and signed again.
Ideally, this commissioner is the same person who executed your original affidavit. This kind of correction should only happen for less important mistakes. If you change your mind about a key fact in your affidavit, you have to prepare and swear a new affidavit to explain what the change is and why you’re making the change.
The Do's and Don'ts of Affidavits
| DO | DON'T |
|---|---|
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DIY
When completing an Affidavit fill out the Affidavit Checklist
