4 Must Haves in Court Affidavits

Published on 29 August 2022, 07:22:56 AM

We understand emotions may be running high in your legal dispute. Ontario court judges are used to it. They have empathy for the high emotional cost of court battles. While you may be madder than a wet hen, an affidavit is not the place to tell the world about it. Before you draft an affidavit for an Ontario court, here are four must haves to include.

When to Use an Affidavit

Affidavits can be used in family court, lawsuits, employer complaints or almost any dispute you can think of. A software analyst who lost her job with an Ontario corporation used an affidavit to get a letter waiving a non-competition agreement. The 48-year-old manager was let go due to cost cutting. She found work with a competitor but was turned down by a company lawyer when she asked to waive the agreement. Her affidavit to the board of directors convinced them she had no corporate secrets to expose. She got the letter and successfully avoided what her lawyer called a “nasty” potential lawsuit. 

What to Include in Your Affidavit

1. Just the facts, Ma’am.

Your affidavit is your side of the story. It’s a statement of the facts as you know them — what you (and only you) saw or heard and when or where it happened. List only the facts and be as concise as possible. You want the content to be complete. But including too much could muddy your argument.

Number each sentence or paragraph. This helps the judge to follow along and you or others to easily refer to each fact in court or when you communicate with opposing lawyers.

Photos, legal documents, employment contracts, promissory notes or anything else you consider relevant can be attached as exhibits. Label each exhibit alphabetically, starting from “Exhibit A” to “Exhibit Z” or however many you have. Exhibits that include more than one document are numbered. For example, Exhibit A-1, Exhibit A-2 and so on. 

Refer to the exhibits in your affidavit, so the judge or other party and their lawyer can understand why you attached them. For example, “My employment contract is included as Exhibit A.” Follow this statement with “now produced and shown to me and marked as Exhibit A.” Adding this indicates you showed the exhibit to a notary public, who confirmed it was attached.

2. Be accurate.

Everyone makes mistakes and lawyers are not immune. Making a typo or minor mistake such as inserting the wrong year is not a deal changer as long as you fix it. File a corrected affidavit as soon as possible with the court or distribute it to all other parties to your legal dispute. 

Major factual errors, on the other hand, defeat the purpose of making an affidavit. They may even call your own credibility into question. Check and double check before you submit your affidavit. If you are uncertain about an exact date, indicate that by saying “on or about March 27, 2020.” You can also be vague by using words such as “I believe that” something related happened. 

Speaking of related, be sure your content deals with the matter at hand. Courts want only information relating to the current dispute. Dragging other grievances into it can result in parts of your affidavit being struck by a judge as irrelevant or declared frivolous, vexatious or scandalous.

An executive who accused an employee of sexual harassment and not following directions had his allegations struck by the court. The employee sued for unpaid wages after the company failed to compensate him on time. The company countered he had breached the Occupational Health and Safety Act by sexually harassing employees and had not completed his work. The court struck the allegations because, while relevant to his termination, the actual court case was based on the wage dispute. 

3. Tell the truth and only the truth.

Lying in an affidavit is a criminal offence. When you swear or affirm an affidavit, you make an oath, just as you would if you testified in court. It tells the court you stand by your word. Deliberately misleading the court or perjuring yourself is punishable by up to 14 years in prison under Canada’s Criminal Code. 

A criminal conviction has long-lasting consequences. A Canadian Bar Association study found serving time can result in trouble finding work, getting parental time with children and travelling out of country, including to the U.S. You may not be able to serve on a jury and your DNA, fingerprints and photo could be kept on file by police, You may have to pay victim surcharges and fines or be sued like O.J. Simpson. Some professions can even prevent you from being licensed to work.

Would you want that kind of grief?

BTW, you can “swear” an affidavit if you are religious or “affirm” it if you’re not. It’s your choice. 

4. Cross the ‘t’s” and dot the ‘i’s”.

Before you take an affidavit to an Ontario notary public to be witnessed, have a trusted friend, family member or coworker look it over. A second opinion never hurts. For example:

• Is your affidavit easy to understand. 
• Are facts listed in the order they occurred? 
• Did you leave any details out? 
• Are exhibits numbered and attached? 
• Does your affidavit make sense? 

Bring two pieces of personal I.D to your notary appointment. At least one must be government issued and have a photo. A driver’s licence or Ontario ID will do. Your notary public will verify your identity and witness that you signed the document before them. They can’t judge whether it is true or accurate. That part’s up to you.

(P.S. Axess Law notaries are licensed lawyers. Ask them if you need legal advice before you finalize your affidavit.)

Make a Valid Affidavit by Video Call

Axess Law Ontario notary publics can swear or affirm your affidavit by online video call. Video conferencing is available anywhere in Ontario, 7 days a week, day or evening, at your convenience. Call toll-free to 1-877-522-9377 or in Greater Toronto at 647-479-0118 or use our online booking form to book an appointment. In person meetings are available at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Learn more about Axess Law’s notary public services.