Family Law / Divorce Library

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Family Court:
Drafting Affidavits for Court

Drafting Affidavits for Court

This page only addresses Affidavits in the Court of King's Bench. See Applications for more information about Provincial Court and Claim/Statement documents, where there are fewer filing rules.

Affidavits basically tell your version of events. You can also attach documents to your Affidavit, known as Exhibits. You typically get up to 40 pages of Exhibits.

Affidavits are filed along with, and in response to, Applications. Which Application is being filed will determine which Affidavits are filed, and on what deadlines. See Family Court Basics to learn about the different types of court hearings, and which level of court is appropriate.

All Affidavits are filed at the Clerks' filing counter at the applicable Courthouse, and must then be Served on the opposing party.

Some Applications, such as Desk Divorces and Interjurisdictional Support Order Applications, require their own form of Affidavit. Other Applications can use this form:

Your Affidavit has to write out the evidence supporting your position and what you're seeking. You generally aren't permitted to bring up evidence in court unless it's in a sworn Affidavit (although there are some exceptions, for example if a fact is so universally-accepted or capable of reference by an undisputable source, then it might be admitted into evidence through a concept known as Judicial Notice).

Some types of Applications require that certain evidence be contained within the Affidavit, for example some of the Service-related Applications, and Applications to suspend the Maintenance Enforcement Program's enforcement of a child/partner/spousal support order.

Evidence in Affidavits must be relevant to the determination of one of the issues in the Application or Cross Application. It's up to you to learn about the court order that you're seeking, to find out what considerations are relevant. Section 16(5) prohibits a person's past conduct from being considered by courts in parenting applications, unless it's relevant to the exercise of their parenting time, decision-making responsibility or contact with the child. For example, adultery usually is not relevant. Courts have ordered that portions of an Affidavit be removed where it's simply meant to humiliate the other parent, such as intimate pictures or sexting (JS v MM, 2016 ONSC 2179). Courts have also said that parents have the right to separate, and it's not up to courts to decide whether they like or agree with the reason for separating (MacPhail v Karasek, 2016 ABCA 238 at paras 44-45; BRH v RPS, 2017 ABCA 268 at paras 57, 58). All poor behaviour, including overly-inflammatory Affidavits, can lead to a costs penalty against the misbehaving person.

For most Applications, the length of each Affidavit and Exhibits, the deadlines that they must be filed, and formatting requirements, unless the court orders otherwise, are set out in Family Practice Note 2: Pay careful attention to paragraphs 26, 29, and 51 in particular, as failure to meet these requirements may result in the Court Clerks refusing to file your document. If special circumstances require a different procedure, you can ask for permission to change any of these parameters in Family Docket Court, or you can bring an application for permission to file even though you aren't complying with these rules, called a fiat (see Applications). Different rules apply for Simple Desk Applications, Urgent Applications, and Interjurisdictional Support Applications (see Applications).

In most family law applications, you can refer to something that another person told you, as long as you identify who that was (known as hearsay). However, you generally cannot refer to a statement made by someone other than the Applicant or Respondents to the Application if the Application is for a final order (for example, if the divorce was granted years ago and you're applying to terminate support). The person who made the statement should swear their own Affidavit, which you would either need the Court's permission to file, or could be attached as an Exhibit to your Affidavit.

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Family Court:
Drafting Affidavits for Court


Content by Ken Proudman of BARR LLP (Edmonton)

Last updated on January 21, 2023

This page has not yet received a complete review.

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