Affidavit in Family Court
In many family law proceedings, an Affidavit is the only document that a court has to help decide the outcome of a case.
An Affidavit, which is also called an affidavit in the legal community, is a document that is sworn by the person signing it and is then signed and stamped in order to be valid. There is not too much to it – just a series of facts that are then signed and stamped by a Commissioner of Oaths or Notary Public.
The facts contained within an Affidavit are extremely important because they are, in fact, the only evidence that a family law Court has to make a decision in your case. Many people forget to sign the Affidavit or don’t see the importance to do it; however, without that signature, the Affidavit is not valid in the eyes of the Court . An Affidavit without a signature is just words on a page.
The facts in an Affidavit are submitted to a Court who then relies on them to make a decision. It is very important that the facts are good facts and that there are enough facts to help a Judge make a decision. If there are not enough facts in your or the other side’s Affidavit, then the Judge may not make a decision at your first court date. This could mean that you end up having more time away from your children because there was not enough information in your Affidavit to help a Judge make a decision.
Affidavits are a required document in family law. The rules state that you need Affidavits to ask for an Order in family law Court. Basically put, if you want a Court order, you need an Affidavit.
The Parts of an Affidavit
An affidavit must contain certain information that helps the judge make a decision. Generally, the following tips apply:
- Personal Information. A personal statement about who the affiant is and who or what the case is about is useful but not always necessary. Most often, the affiant will be identified by a name and basic personal information. Where the affiant lives and works, what their relationship is to the children, whether s/he has a job or not, and how long they have known the parties are some examples of this information.
- Relevant Facts. The most important component of an affidavit is a simple statement of the facts. The facts should be clearly written and to the point. Every relevant fact should be stated in a factual manner. If the information addresses another party’s behavior, the affiant should attempt to use quotes, such as "I heard him say" rather than "I know he said". Short factual sentences are often the easiest to read but may take time to write.
- Truthfulness. It is essential that every statement in an affidavit is true. An affidavit is under oath, meaning that when you sign an affidavit you are subject to civil and criminal liability for making false statements. It is never worth the risk to submit false information in court. It is possible to be prosecuted for perjury and charged with a crime for this. On the civil side, many courts have rules allowing a judge to punish litigants by requiring the person to pay fines or attorney’s fees for submitting an affidavit that makes assertions that are not true.
Preparing Your Narrative
With an understanding of the purpose behind your parent’s affidavit in hand, it is time to prepare your story. Your story is the narrative to the family law dispute. It is important that you approach your story clearly, in a concise fashion, and by including only relevant facts. When you prepare your story, you should be mindful of the format of your narrative. Family court judges do not have very much time to review each affidavit. Thus, it is important that you present your story in a plain, clear, and concise fashion taking care to avoid legal jargon that may confuse a judge with little or no family law experience. You should think about the following when preparing the story:
• Use short sentences.
• Avoid ambiguous or complex language.
• Group facts together that support one another.
• Identify the source of your information (e.g., "I saw …").
• Avoid assumptions. Physician testimony is often very helpful.
• Format the statement as a continuous narrative. Subheadings are acceptable.
As you prepare your story, you should consider the most effective sequence for your narrative. For example, suppose you are the parent with primary residential custody and have moved from your home to a new apartment a few blocks away. Your soon-to-be former spouse may attempt to argue that you should not share residential custody of your children because you have drastically altered their environment. Opine on the importance of a child to maintaining their routine and the psychological impact of altering a child’s routine. This should be your first section. Should you append pictures of your apartment and a diagram of its layout? Perhaps. Should you mention the furniture that transports between both homes? This should be a consideration. Should you describe how you have it set up for your children and the boys and girls bedroom arrangements? Likely.
Format for Your Affidavit
Affidavits must be written in a specific way, and there may also be some Court-specific requirements you have to follow, especially if you are completing an Affidavit of Service. One thing to keep in mind is that each Family Court requires that an Affidavit be completed in a particular format. This is because each Affidavit is a sworn statement that has to be in a particular format, and the contents must be confined to specific "heads".
You need to use the "heads" below, unless the Court is allowing you to vary from this:
1. THE TITLE
At the top of the Affidavit you must include the court file number, name the parties, and identify the document as an Affidavit. The heading must be in the centre of the page, in bold print, and should read as follows (be sure to insert the current family court file number and names of the parties on the lines below):
2. AFFIDAVIT OF:
(i) YOUR NAME, a named individual, who says as follows:
2. INTRODUCTION
This part should only include a short statement of the material facts of your case that are relevant to the issues you represent in your Court application.
3. CIRCUMSTANCES RELEVANT TO THE APPLICATION
After a short introduction, you must divide the body of the Affidavit into headings as set out below. You should arrange the material in the order you want it to be reviewed by the Court. Bear in mind the importance of numbering sub-headings and paragraphs and of starting a new page for each listed heading. You should also be using:
There is no need to be verbose but you do have to give the Court a clear and complete picture. If you make only a brief reference to an issue of importance, you run two risks:
1. That the Judge will think it more important than perhaps you meant it to seem, and give it more weight than you intended; or
2. That the Judge will think it is not important enough to refer to again; decide not to give you the benefit of the doubt; and decide the issue the opposite to what you had in mind.
You have to make it crystal clear what your position is on each listed issue.
4. FURTHER FACTS YOU SAY ARE ADMISSION IN EVIDENCE
After this heading, summarize the evidence you are prepared to file with the Court, and attach copies of those documents as exhibits and label them appropriately. In some cases, you may have to identify specific paragraphs in your Affidavit where your position on an issue can be found. If a fact is contained in an exhibit, you should include a cross reference to that exhibit. For example, you might need to refer the Judge to Exhibit "A", page 5, item 1(a), paragraph 3. You should also refer to the number of the paragraph that contains that subheading in your Affidavit where you also refer to this particular fact. You must be very specific.
5. LISTED DOCUMENTS
Again, you have to number documents and label them properly for both the Court and yourself. You should list all the documents you are relying upon for your case.
6. OTHER ISSUES
Even if you are not going to be cross-examined on your Affidavit, you should still start each listed issue with the heading to allow you to elaborate the issues if you feel it is necessary.
Errors You Don’t Want to Make
Common errors made in preparing Affidavit to be used in Family Court and suggestions on how to avoid them
No matter how many times a person prepares an Affidavit to be used in Family Court, they are always susceptible to making a mistake. As Family Law lawyers, we see many of the same mistakes time and again. Here are six common mistakes and how to avoid then.
#1 – Affidavit is Not in the proper form. Rule 5.7 of the Family Rules outlines the proper form for Affidavit including, what information must be included in the heading, which schedule is to be used and what must be attached to the Affidavit.
#2 – The Affidavit is not in support of an Application currently before the Court. For example, a spouse that is seeking a variation of a support order does not need to file affidavits in support of their application, especially if they have previously filed affidavits in the earlier action which resulted in the support order.
#3 – The Affidavit contains unhelpful information for the Judge. For example, the Affidavit contains background information about the parties relationship or previous Court Orders. While this type of information may be required in an Affidavit filed in support of an application concerning parenting time with children , it is irrelevant for a support Order variation.
#4 – The Affidavit is mainly comprised of exhibits instead of the main Affidavit. Exhibits should only be referred to in the Affidavit and attached to the end of the Affidavit. For instance, when the Affidavit refers to a Notice of Assessment, a copy of the Notice of Assessment should be attached to the end of the Affidavit not located in the middle of the Affidavit.
#5 – The Affidavit lacks specific information required by the Judge to make a decision. For instance, you cannot file an affidavit for the purpose of following up on a previous Order without reviewing the Respondent’s most recent financial disclosure and comparing it to your own financial disclosure. The new financial disclosure should be filed and the judge should be made aware of the change so that the Judge can assess whether there has been any change in circumstances to vary the Order.
#6 – Affidavit is not properly sworn before a Commissioner of Oath. A properly executed Affidavit includes a Declaration/Affirmation at the end of the Affidavit. This is then followed by a place for the signature of the Commissioner of Oath who has witnessed the swearing of the Affidavit.
Filing Your Affidavit
When you have completed your affidavit in proper form, it should be "filed" at the court office at your local Family Court office. Filing means that you hand in the original of your affidavit (and any exhibits) and a copy for the judge to read. Your affidavit is not considered "filed" until you have handed in your original and your copy.
It is important to file your affidavit because then the court has a record of:
If you do not file your affidavit but simply hand it to the marshalls, it is much more difficult for you to prove that you in fact followed what the judge ordered, and that the other person was properly served with a copy of the affidavit.
You are also required to serve your affidavit on the other people involved in your case. Usually this means that you hand them the original affidavit and any attached documents or you give them a copy of your affidavit and any attached documents (the ones you filed with the court). You should do this as quickly as possible after you receive the judge’s order telling you to do so.
When you have handed over your affidavit and exhibits and have served them on the other parties, then the other parties and/or the judge will have to review the affidavit and decide what to do with your case. This may mean that your case has to go to trial, a case conference, or a motion.
Getting Legal Help
It is always best to consult with a legal professional when drafting any document to be submitted to the Family Courts. Your document must comply with all of the rules of court and also satisfy your particular purpose . The form of the affidavit may be very different depending on whether you are responding to the allegations in the Petition or if you are preparing the application to commence the proceeding. A professional may, as well, assist you with preparing and filing any necessary affidavits to support your court application.
