Introduction to Drafting Affidavits in Family Law 

Affidavits are crucial documents in legal proceedings, especially in family law cases. For those unfamiliar with legal jargon and procedures, drafting an affidavit can seem daunting. This post aims to simplify the process and provide a step-by-step approach to drafting effective affidavits.

Crafting a clear, compelling, and logical affidavit is crucial to advancing your case before the family law courts in British Columbia.

What is an Affidavit?

An affidavit is a written statements of facts that are sworn to be true and are used as evidence in court. In family law, affidavits are often used to present facts about a case, such as details about a marriage, financial information, or the well-being of children. They replace oral testimony and are a critical part of the evidence presented in court.

Formal Requirements

Affidavits must comply with specific formal requirements which vary depending on the court. See Provincial Court Family Rules and Supreme Court Family Rules.

First Person Narrative: The affidavit must be written in the first person, expressing the writer’s own statements and beliefs.

Numbered Paragraphs: The content should be organized into consecutively numbered paragraphs for clarity and ease of reference.

Numbered Pages: The entire affidavit must be numbered consecutively, including the exhibits. Preferably in the top right corner. This is make it easier for you to take the judge to the relevant pages when presenting your affidavit evidence in court.

Identification: It should clearly state the name, address, and occupation of the person swearing the affidavit.

Exhibits: If the affidavit refers to any documents as exhibits, these must be clearly identified and attached to the affidavit. However, just because documents are marked as exhibits to an affidavit does not convert them into admissible evidence, particularly where they are tendered for proof of their truth. 

Swearing or Affirmation: The affidavit must be sworn or affirmed to be true before a person authorized to take oaths, such as a commissioner for taking affidavits, usually a practicing lawyer, notary, or clerk of the court.

Signing: The affiant must sign the affidavit, and the signature must be witnessed by the commissioner for taking affidavits.

Court Compliance: Ensure the affidavit is in the required form and complies with the specific rules of the court where it will be filed. See Provincial Court Family Forms and Supreme Court Family Forms.

Best Practices When Drafting Affidavits

Avoiding common mistakes is crucial when drafting an affidavit for family law proceedings. Here are some key points to keep in mind:

Stick to Facts: Only include facts that you have direct knowledge of. Avoid hearsay unless it falls under certain exceptions.

Be Specific: Vague statements can weaken your affidavit. Provide detailed information to support your claims, including dates, times, and specific incidents.

Language: Use clear and concise language, avoiding legal jargon as much as possible.

Do Not Overstep Expertise: Unless you are a qualified expert, do not include expert opinions. Personal beliefs or inferences are acceptable to a certain extent but even those should be avoided.

Proper Execution: Ensure that the affidavit is properly sworn or affirmed before a commissioner for taking affidavits. Any exhibits referred to must be identified and attached.

Maintaining Relevance: Keep the content relevant to the case. Irrelevant information can distract from the key points and may be stricken by the court.

Following Court Rules: Each court may have its own specific rules regarding the format and content of affidavits. Ensure compliance with these rules to prevent the affidavit from being rejected.

Professional Presentation: The affidavit should be well-organized, typed, and free of grammatical errors. A poorly presented affidavit can undermine its credibility.

Avoiding Argumentative Language: The tone should be factual and neutral. Avoid using confrontational or argumentative language.

Double-Checking Facts: Ensure all the information provided is accurate. Inaccuracies can damage your credibility and affect the outcome of the case.

Headings: Use neutral headings to organize lengthy affidavits. 

By being mindful of these common pitfalls, you can draft a more effective and admissible affidavit for family law proceedings. Remember, consulting with a legal professional can provide additional guidance and help avoid these mistakes.

Inadmissible Content in Affidavits

Here are some examples of common but inadmissible content in affidavits:

Speculative Statements: Statements that are based on speculation rather than facts are inadmissible. For example, “I believe the other party will destroy key documents” is speculative and should be avoided.

Hearsay: Statements that rely on information from others without direct knowledge are generally inadmissible. For instance, “I was told by my neighbor that the other party was seen at the scene” is hearsay.

Opinions and Conclusions: Affidavits should not contain personal opinions or conclusions. For example, “I think she is guilty” or “In my opinion, the his actions were malicious” are inadmissible.

Irrelevant Information: Including information that is not directly related to the case is inadmissible. For example, “The other party has a history of being late to meetings” is irrelevant if it does not pertain to the specific legal issue at hand.

Character Attacks: Affidavits should not include attacks on the character of the opposing party. For example, “The other party is a known liar and cannot be trusted” is inadmissible.

Double Hearsay: Statements that involve multiple layers of hearsay are inadmissible. For example, “I heard from a friend who was told by another person that the other party admitted to financial fraud” is double hearsay.

Legal Arguments: Affidavits are meant to present facts, not legal arguments. For example, “The other party’s actions clearly violate the law” is a legal argument and should be reserved for legal briefs.

Inflammatory Language: Using inflammatory or emotional language is inadmissible. For example, “The other party’s actions were outrageous and despicable” should be avoided.

Unverified Documents: Attaching documents without verifying their authenticity or relevance is inadmissible. For example, attaching a letter from an unknown source without verifying its contents is not acceptable.

Anonymous Sources: Statements from anonymous sources are inadmissible. For example, “An anonymous source informed me that the defendant was involved in illegal activities” is not permissible.

Consequences of Improper Affidavits

Affidavits filled with irrelevant assertions, prejudicial statements, double hearsay, personal opinions, arguments, or information from unnamed sources are inadmissible. Such affidavits may result in the offending party being ordered to pay costs and the court directing that the inadmissible material be struck.

An affidavit that is deemed unnecessary, scandalous, frivolous, or vexatious, or one that may prejudice, embarrass, or delay a trial or hearing, or constitutes an abuse of process, may be struck out. Such an affidavit may also lead to an order for special costs against the offending party.

Perjury is making a false statement by affidavit with intent to mislead and with knowledge that the statement is false under section 131 of the Criminal Code. A person committing perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years.

Affidavits Sworn Outside of British Columbia

The following people can take affidavits outside BC for use within BC (Evidence Act, ss. 63 and 64): 

• judges and persons with other similar positions authorized to administer oaths in the courts of justice of that province or country; 
• mayors; 
• specified Canadian diplomats; 
• notaries public, within their territorial jurisdiction, under seal; 
• Canadian trade commissioners; 
• commissioners authorized by the laws of British Columbia to take affidavits;
• all commissioned officers in the Canadian Armed Forces on active service in or outside of Canada; and
• all commissioned officers of Her Majesty’s naval, military and air forces of Canada on active service in or out of Canada and all Agents General for British Columbia are empowered to administer oaths and take and receive affidavits, declarations and affirmations in or out of British Columbia for use in British Columbia.