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8.6 Writing Affidavits

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The Content

Since the affidavit is used as evidence in court, there are strict rules on what you can write in your affidavit. Affidavits must provide information that is true and relevant.

  • Truth – Everything within your affidavit must be true to the best of your knowledge. Lying in your affidavit will hurt your case. If you have a doubt about whether something is true, you probably should not include it in your affidavit.
  • Relevance –Don’t include facts that aren’t related to the issues in your case.  For example, if your application is for child support, don’t include the facts about your former spouse’s extramarital affairs.

 

Hearsay and opinion Statements

The general rule is that

Hearsay and Opinion Statements are not allowed in your affidavit.

What do we mean when we say hearsay and opinion statements?

Hearsay

Hearsay is information you learned from someone else but you don’t have first-hand knowledge of it.

“Jane Smith told me she biked to work yesterday” is hearsay.

But, “I saw Jane Smith arriving at work on her bike yesterday” is not hearsay.

The exception to the no hearsay rule is when you are writing an affidavit for an interim order.

Hearsay in an affidavit for an interim order must have:

(1) the name of the person who told you the information

(2) when that person told you the information

(3) a statement telling the reader that you believe the statement to be true

For example, “My neighbor, Sandra Young, told me on July 12, 2015, that she saw my ex-spouse arrive at home after midnight the night before. I believe her statement is true.”

Opinions

Avoid providing your opinion in your affidavit. Affidavits should be statements of facts not personal opinions.

For example, an opinion statement would be, “I think my child loves chocolate ice cream.”  

You can’t include this but you can include, “My child asks for chocolate ice cream every weekend.” 

Sometimes, opinions can be written to look like facts:

“He is a bad father”

The judge will likely wonder how you can know he is a bad father. Try to just stick to the facts. Instead write:

“I have given him many opportunities to visit the children or to have phone conversations with them but he has refused to do so. To date he has not financially supported the children. I asked him to help pay for their hockey lessons but he has refused.”

Reading this, a judge can come to their own conclusion that he hasn’t been a very good father.

Generally, only experts are allowed to state their opinions or what they believe.

To avoid using hearsay and opinion statements take a look at the table of common mistakes while writing your affidavit.

 

TABLE OF COMMON MISTAKES

Common Errors

Don’t write

Instead write

Hearsay (in a final application)

Jane Smith told me she biked to work yesterday.

I saw Jane Smith arriving at work on her bike yesterday.

Double hearsay

John Doe told me that Jane Smith said she biked to work yesterday.

I saw Jane Smith arriving at work on her bike yesterday.

Anonymous hearsay

John Doe told me that B said she biked to work yesterday. (John didn’t tell you who B is.)

I saw Jane Smith arriving at work on her bike yesterday.

Opinions

I think my child loves chocolate ice cream.

My child hates his current babysitter.

My child asks for chocolate ice cream every weekend.

 

My child would cry when he sees his babysitter. My child frequently tells me that he doesn’t want to play with his babysitter.

Conclusion/Character attack

 

Accusation

My ex-spouse is a horrible parent.

 

 

My husband is a violent person.

My ex-spouse has repeatedly failed to pick of Jonny for his visits for the last year and to pay child support.

Last July he hit me and in September he… (use specific facts to illustrate his actions as a violent person)

Emotions

I was devastated when my ex-spouse decided to move out.

My ex-spouse moved out of our matrimonial home on July 12, 2015.

Absolute statements

“Always.” “Never.”

“Frequently.” “Seldom.”