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HOW TO WRITE AN AFFIDAVIT FOR A FAMILY LAW CASE
One of the easiest ways for a family law file to slip from "engaging in settlement discussions" to "high conflict litigation is when one party files an application supported by an inflammatory affidavit. The party "receiving the affidavit is embarrassed, shocked and horrified - it makes them sound like a terrible person, it may contain exaggerations or allude to things that are not true, and it is a sworn document. There is a temptation to create a responding affidavit written in the same tone, with similar one-sided versions of the facts, "fighting fire with fire" so to speak.
This creates two problems. First, a judge or master reviewing the application materials is left with two affidavits that are likely to contain a variety of legally inappropriate content and which may obscure or confuse the relevant parts of the "story". Second, a war of affidavits between parties can seriously damage relationships between two people who are attempting to work as co-parents or disentangle themselves financially by misconstruing innocent events or conversation and breaking already compromised trust.
The first thing a litigant who receives an "angry affidavit" should understand is that they are not the first person ever to receive one nor is it the first time a presiding judge or master has ever read one.
The second thing a litigant who receives an "angry affidavit" should understand is that many of the most antagonistic parts of the affidavit may actually be legally inappropriate and that judges and masters are typically aware of what is legally inappropriate and do not use it to make decisions. In fact, many members of the judiciary have condemned this kind of supporting material in their decisions and rather than assisting in winning an application the wrong content and tone in an affidavit can do a great deal to distract from valid, legally relevant facts. Affidavits are meant to be about facts - not assumptions, feelings or speculative diagnoses of the deficiencies of a former partner.
For example: "On January 8th, 16th, 24th, and 30th the Respondent did not return the children at the scheduled drop off point" are facts that you can swear to if you know them to be true. The conclusion that this is "because the Respondent does not care about the children's safety and is a reckless and negligent parent" is not fact, and is inappropriate and unhelpful in affidavit materials.
Although they often read as "stories", a lawyer can interview you to gather the legally relevant facts, making sure they are clearly communicated in accordance with the law in the most effective format and tone. A lawyer can also help you "interpret" what may be driving certain parts of an affidavit you receive - why the other side is bringing up particular events or facts and if there is a likely strategy behind what has been written. If the affidavit makes baseless accusations, a lawyer will explain to you what kind of evidence the court can use to dismiss those accusations and how you might be able to submit it with your response as there are strict rules about what is filed in court. A balanced, concise, non-inflammatory affidavit serves a dual purpose - it adds to your credibility as a litigant in front of the courts and it assists in moderating conflict on your file by avoiding "fueling the fire" with more emotionally loaded content that should not be part of the process.
What if I Swore Something Wrong? Errors and Affidavits
Although everyone wishes it didn't happen, it sometimes does: an affidavit is sworn and filed and the party who signs it realizes that, for whatever reason, they got something wrong. The worst place for an error to be pointed out is in court where a pointed question is asked or evidence contradicting what was sworn is produced and it becomes clear, for the first time, that something is not right.
Sometimes, as in James v. Male, 2011 BCCA 81, the error is not material and won't impact the outcome. In that case, it was a particular typographical error on an affidavit of service. However, some minor: errors such as dates can be very material to what the court is trying to decide and it's best to get advice on how a mistake will impact things - and in some cases, try to fix it.
Lawyers have a duty to advise the court if they know there are errors or inaccuracies in an affidavit and to ensure what is sworn is true as far as they have been informed (See, for example, Hart (Re), 2007 LSBC 50 (CanLII)). One of the ways counsel can inform the court of an error is to file material correcting and explaining errors how errors were made, if necessary, but it's generally better to take steps to avoid factual errors at all.
One of the best ways to guard against affidavit error is to be prepared. For example, providing all documents requested by a lawyer in a timely fashion helps them draft skeleton materials where dates, names and numbers are already verified and they can interview you to fill in timelines or for more information about specific events, focusing your attention. It is important for your counsel to know if you@146;ve sworn any statements before so they can discover and question any contradictions, especially where a conflict has a long and complex history. Planning enough time when setting or responding an application to review materials before the day they are signed is also very useful.
Another way to prepare is to think about how you best communicate and to use your own strengths and balance your own weaknesses - if you're highly emotional, it may be a good idea to condense some facts in writing before an interview so you can think more clearly and stay on track; if you have a poor memory generally, try recording things in a journal so that you can be specific about when and in what order things happened. Even police officers, who are trained to recognize important facts so that they can be witnesses, take and review notes before and during legal proceedings. If you have trouble focusing or deciding whats relevant, counsel can provide you with a series of questions that help set out key facts. Gathering information is imperfect and often a combination of strategies tailored to the issue and the client, and great affidavits are typically a result of combined efforts by client and counsel.
Contact Jill Chapin, for a consultation
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This page last updated: 2014.12.04
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