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AFFIDAVIT REGARDING CUSTODY AND IDENTITY ... - SharpSchool form

hello affidavits what's an affidavit well an affidavit is a written statement that you make for court typically that is essentially under oath so if you lie in an affidavit you can be prosecuted for perjury most of the time though my personal experience people lie in affidavits all the time and the court gives no about this they don't care that's how it is but if you are a person who is making an affidavit you're in a fiant ah if you're a person that's making an affidavit you should be sticking to the facts that's how you're going to gain the most credibility and how is it that you make a proper affidavit we're going to talk about that right now so typically you're going to see a lot of people creating their own affidavits in family court sadly a lot of the time you're going to see about 60% of cases where at least one person is representing themselves and that is a sad statistic and that is typically in family court we are trying to as a help center for self represented litigants we are trying to give people the information that they need to help them with their case that will you know bring their case from a poor level up to here where it's an exceptional level this is one of those this is one of those lessons you're not going to want to miss it now what is an affidavit already discussed it where is it used already discussed that uh what is it that you should be saying in an affidavit I will get to that um so I'm going to keep this video on point with family law rules only so phase law rules in Ontario although this is going to be applicable to cases outside of Ontario essentially most provinces except for Quebec have you know very similar laws when it comes to family law and I'm going to refer to to Ontario's family law rules but if you're in a different province in Canada then you're going to have to refer to your own rules rule 14 now I say rule 14 because this is the typical uh rule in a proceeding and a family law proceeding that you're going to have to produce an affidavit for a motion a motion is how you get some temporary relief in a case and I mean relief in the sense that you ask the judge for an order and an order is made but it's made on a temporary basis so under Rule 14 you're going to find rules about bringing motions you're also going to find what is acceptable in a motion which is an affidavit an affidavit is typically used on all motions if you go into family court there is probably in my mind one percent of the time where an affidavit is not used in a family law motion but you know that aside there are you know oral evidence is permitted at a at a motion but it's usually not used you're not going to see people testifying at a motion if you're if you're a self represented litigants you're trying to give evidence while you're speaking to the judge in your submissions that's a no-no you don't try and give evidence through your submissions and you don't give evidence when it's unsworn so under Rule 14 17 or rule 14 subsection 17 you're gonna find evidence on a motion so this is an under the family law rules in Ontario so evidence on a motion may be given by any one or more of the following methods 1 an affidavit or other admissible evidence in in writing to a transcript of the questions and answers on a questioning on a questioning under Rule 20 number 3 with the court's permission oral evidence again you're not going to see you're not going to see a lot of people testifying during family motions you're just not under subsection 18 you're gonna see that this is a very key element here that you should not be using hearsay evidence in your affidavit but there's an exception to that as always so it says it sub 18 that an affidavit for use on a motion shall as much as possible contain only information within the personal knowledge of the person signing the affidavit that means that if you're the person who's bringing this affidavit and filing this affidavit you should be speaking to facts only but sub 19 deals with hearsay restrictions so sub 19 is says that the affidavit may also contain information that the person learned from someone else note that I said someone and emphasized someone else but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information to be true and in addition the if the motion is for a contempt motion under Rule 31 the information is not likely to be disputed well let's let's set that one aside we're not going to get into that today a contempt motion is is rarely seen in Family Court uh and it's it's not something that most people are going to be dealing with although you may and I will make a separate video about contempt motion but focus it focusing today on affidavits so key elements of hearsay in an affidavit that need to be met you need to identify that person that told you something by name and the affidavit needs to state that you as the person who's making the affidavit believes the information to be true those are the two necessary elements they have to be they have to be in there and I've seen affidavits where they are not in there and that hearsay still goes through but this is for family court there are different restrictions in civil courts and I'm not going to get into those today but essentially if you're dealing in family court and you're signing an affidavit you should be sticking to what you know and what you can support if you're saying if you're making statements that are hearsay they could be excluded if you don't follow the rules all right so here is a general affidavit this is for use in Ontario only and I found this at Ontario Court forms onc a and you can find templates for all your forms for family court there this is the second page of that document and at the bottom of the second page so here's the website where I got it from Ontario Court form so NCA I clicked on English and right on the next page I clicked on family law rules forms highlighted with the big red triangles click there for all your family law rules forms this takes you to the next page which you'll need to scroll down scroll down and you'll start to see all the different forms all the different forms that you'll need in family court are here now here is where the affidavit is highlighted in red 14 a now back to the affidavit so the court file will go here you're going to fill out your court file you if you're on a motion you already have a court file put your court file on every single document you create your court file number should be on everything right below that you see I highlighting here in red where you should put the date of the affidavit this is the date that you're going to have it commissioned the name of the court and the court address go up at the top of the top of the front page the space for the applicant and respondent this will not change unless a lawyer comes or goes from the case you won't need to change this information there my name is your full legal name goes right there and I live in I'm going to put Windsor Ontario under that section as well right below you see the number one well this is where you're going to number paragraphs and tell your side of the story this is a very important section and this will determine how the motion goes now what specifically goes in here well those details are going to be left to you but I will give you some examples of what to put in there and what works well and what doesn't here's a sample opening paragraph I am the moving party the party bringing the motion and I am seeking in order for disclosure of documents in the alternative you could be responding to a motion and here's what you could use as an amp as an opening paragraph I am the responding party and I deny all of the statements of the moving party except where I have specifically noted here in or below so this is called a blanket statement and this is basically saying that you're replying to something and you would want to specifically mention that affidavit so if I'm replying to Mrs Smith's affidavit of January 1st 2016 I would say I specifically deny all of the allegations or all the statements in Mrs Smith's affidavit of January 1st 2016 except where I agree and state below so that's a good opening statement for a reply affidavit so that's if you're replying to a motion and replying to an affidavit all right so let's play both sides of the fence here so let's stay on the reply side for a moment let's keep this again about an issue about disclosure of documents so paragraph 2 may state I have no other documents that mrs. Smith requests in my possession keeping your paragraphs very simple and to one thought each for each paragraph is very important you don't want the judge to be confused you may want to give some background information here you may also want to add in some subtitles for each of your paragraphs that's okay you can do that you can get a little creative with the organization of your document but keep your paragraphs very simple and very simply written stick to one thought per paragraph sticking with the theme of document disclosure this is the from the moving party side or the requesting the requesting party so for instance mrs. Smith is asking the court to make an order about disclosure of documents from mr. Smith and mrs. Smith is saying that that there has been you know a special deduction that was made about a boat so here's a sample paragraph to support that and get in the habit of starting off each of your paragraphs or most of your thoughts with a date or a time frame at least in February of 2008 in January of 2009 etc and that way you're giving a timeline of events if you feel that information is relevant here maybe is the follow-up statement to that and as you can see I'm going to go in chronological order from the last possible piece of relevant information and that event or that piece of information and how it relates timewise to my story to the most recent in the last few paragraphs so as you can see in paragraph 2 I started off in February now I want to I want to think about a moment a little bit later than that that's relevant now I'm going to put in June of 2008 I saw mr. Smith's boat or the respondents boat and he told me it was worth about $400,000 so that is relevant information if this is about document disclosure about some kind of you know tax deduction or whatever so keep your affidavit on point and about the issue that is at hand if you're talking about document disclosure and then all of a sudden you start talking about about the custody of the children and some other story that's not relevant that's not something that should be going in your affidavit unless it's relevant on the other side you may be responding if you're mr. Smith by saying that you owned a boat once in 1999 but never had shown that boat to mrs. Smith you could also add in there maybe she saw a photograph but I'm not sure that's sort of an inflammatory statement though you want to avoid inflammatory statements it's value was only $3,000 attached as an exhibit a is the receipt for that boat so this is how you would attach now after you're finished your document you would attach and have separately stamped a document that says on it Exhibit A and I don't have I don't have a sample of what that will look like right now but the person that is commissioning your document is responsible for writing Exhibit A on that specific document so the receipt they will write on there that that is Exhibit A as referred to in the affidavit of mr. Smith and the date so that's how you attach an exhibit so if you're attaching a document or an exhibit as it's referred to you need to mention that in a paragraph of your affidavit that's how you properly that's how you properly get exhibits before a judge an example of an inflammatory statement would be I owned a boat once in 1999 but never had shown that boat to mrs. Smith mrs. Smith is just crazy she's a crazy biatch you don't want to make statements like that for a number of reasons first of all you want to be taken seriously secondly that's that's called an inflammatory statement in an inflammatory statement that's just included for the purpose of making the other side mad or making the other side inflamed is not allowed per the rules you're not allowed to be going around just making statements that you can't support if she's not if she's not crazy that's an inflammatory statement if there was a legitimate issue about mrs. Smith's perception and she did have a mental illness that would be something where you could you know politely say I believe Miss you know mrs. Smith has has been hallucinating things and I know that she was diagnosed at some point as schizophrenic or you know something to that effect but you know using colorful language and inflammatory statements is a huge no-no a sample closing paragraph could look like this I make this affidavit with no illegal or improper purpose other than to support my motion for document disclosure or if you were replying you are mr. Smith and you opposed that motion to support or to oppose mrs. Smith's motion is what you would add at the end there this is a general statement typically used at the end of all affidavits um I could give you a couple reasons why it is included but I think it's sort of self-explanatory and it kind of just sums up the affidavit and it sort of just always been used in affidavits I mean for them for the majority of the existence of law this sort of a paragraph is sort of a good closing statement and most lawyers will rely on a statement like this to close off an affidavit in summary here's what to avoid when writing for an affidavit inflammatory statements I gave you an example of one already you can probably pick out ten of them in the last affidavit you wrote out or we're thinking about writing and you should avoid them statements outside your knowledge foul language unless you're quoting somebody and make sure to include who you're quoting or who you learn something from if it's outside your knowledge and it's hearsay also try and avoid slang terms unless absolutely necessary and avoid talking about irrelevant issues stuff that's not necessary for deciding the motion that you're going to if you stick to this and you get somebody a third party to re-read or review your material you should be putting together good consistent material on a regular basis it's also a great idea to stick to one thought per paragraph and write in very small and simple sentences so back to the form this is the second page of the form all your all your paragraphs will be formatted into the second page and the first page in this space that's highlighted here you're going to want to put a line a straight line through any space that is not used up and that's a suggestion used in the document here but it's also good to to make sure that nothing else could be added at a later point moving towards the bottom of the document of the second page of the affidavit this is where you're going to sign this but don't sign it right away you have to sign this in the presence of a commissioner somebody who's going to commission the affidavit and basically take your oath and they're going to fill out the section on the left side if you have any questions please post them in the comment section below and thank you for watching this video and check out our website for more great information for self represented litigants i rep myself calm thanks for watching