Introduction
As an ode to glorious decade of music in the 1980s, the title of this blog is an homage to the 1986 song, “Say It, Say It,” by E.G. Daily, who talks about how important it is to tell someone how you feel about them. You don’t want to leave them guessing.
The same principle applies when you are in a family law case, and you are asked to tell your story. As the vast majority of cases never go to trial, it’s less about what you plan to say if/when you are on the stand, but rather, it’s what you say, under oath, in an affidavit. You are swearing to the truth of the matter, how the facts of the case have unfolded, and what you know to be best for you and your children.
This blog is about the art and science of crafting an affidavit to speak for you in family law matters. I use those words carefully, because despite the proliferation of self-represented parties in court, and the revolutionary advances in of AI technology to help people draft court documents, preparing affidavits is both an acquired skill that allows for one’s personal approach to it. It’s not a simple “fill-in-the-blank” process, and many have tried or would have you believe it is. It isn’t. And it is just as important to know what to say as it is to know what not to say, i.e., sometimes more is less, but “people are people” (another great 1980s song from Depeche Mode) and they can’t help themselves, so they blather on. To this I say, just keep it simple, and to the point.
Why Do We Use Affidavits?
Given the nature of the family court system, we start a court proceeding by way of an application, in which we tell the other side what we want and why we want it. The statements we make in an application, or in the corresponding answer, are not sworn statements, i.e., they are not made under oath. Other family court proceedings, such as motions to change, appeals, etc., use affidavits right from the start, but in originating cases, we first encounter the need to draft affidavits at the “motions stage.”
Let me pause here to explain this stage. The originating application/claim seeks orders on a final basis (i.e., starting from the date of the trial or other final resolution of the case), whereas the motion seeks orders on a temporary basis (i.e., it will govern the parties from the date of the argument of the motion until the date of the trial or other final resolution of the case). A motion can also seek an order on a one-time basis (such as asking the court to ask for the appointment of the Office of the Children’s Lawyer).
So, per the Family Law Rules, which governs family law litigation in Ontario, the party seeking an order completes a minimum of two forms:
- The Notice of Motion (Form 14), for substantive relief, or a Motion Form (Form 14B), for simple procedural relief. These forms set out what the party wants; and,
- The Affidavit (Form 14A), which sets out why the party wants what they want.
(Depending on the relief being sought, e.g., temporary support, etc., a party may also need to include a Financial Statement, or other supporting documents).
As I set out below, the affidavit is crucial to a party’s success at a motion, as it serves as the evidentiary basis for the motion, along with other admissible evidence in writing, such as a transcript of questions and answers from questioning under Rule 20, or with the court’s permission, oral evidence.
What Should (and Should Not) Be Included In the Affidavit
At various times in my legal education – when I was in law school, when I was completing my Articling experience, and when I completed the Bar Admission Program – the importance of carefully crafting the affidavit was drilled into me. The first few times I drafted an affidavit, I spent hours upon hours doing so, to get it exactly right. Nowadays, and in reality, people do not have the luxury of endless time or an unlimited budget to draft the perfect affidavit. So, as a lawyer, I rely upon my experience and skills to persuade the reader, through my personal style of written advocacy, about the essential messages I am trying to convey in the affidavit (the science of drafting), tempered by the choice of words, the brevity, and the clarity (the art of drafting).
As I referenced earlier, we have seen a tremendous increase in parties being unrepresented or self-represented in court, and over the last 20 plus years, various organizations have tried to make life easier for them by giving them basic tools to draft affidavits. (AI is the supposedly the latest “saviour” to self-represented parties. We will see.). At one time, I too was one of those keen lawyers who was trying to help disenfranchised family litigants. I was looking for the “holy grail” of tools to help them easily navigate the system. But over time, I came to learn/accept that I could not impart my legal education, my articling experience, nor my 30 years of advocacy into a concise little formula to give to the public. The “formula” is not that easy – why? – because there truly is no one formula.
But there are some basic rules one should follow when drafting an affidavit. Thankfully, I don’t have to invent or re-invent them; they were kindly set out by the court in the recent decision of Dupont-Goode v. Ashmeade, 2024 ONSC 7092. In that case, Justice Sharma was critical of improper motion materials filed by one of the parties, and the judge reminded everyone in the legal profession, and by extension, those who represent themselves, that there are some guidelines to drafting an effective affidavit (please note that where emphasis is made below, I have added it, and not the court):
- The affidavit should contain only relevant facts that are material to the issues raised in the motion. The inclusion of facts that are irrelevant or not material to the issues to be decided constitutes poor advocacy. It distracts the judge from the issues to be decided, consumes limited affidavit space, and raises costs unnecessarily for both parties.
- The insertion of irrelevant, scandalous and immaterial facts suggests to a judge that a litigant is more concerned about maligning the opposing party than meeting the prescribed legal test for the relief sought. It creates an irrelevant distraction.
- An affidavit should contain detailed facts in support of an allegation or position taken on the motion. For example, it is not sufficient to state the opposing party engaged in family violence, without providing detailed facts of the alleged family violence.
- An affidavit should not plead the law, contain argument, or cite legal authorities or authoritative texts. These matters should be in a factum.
- An affidavit must contain admissible evidence. In certain circumstances, limited hearsay evidence may be found to be admissible and given weight by the presiding judge where it is necessary to receive such evidence and where such evidence has indicia of reliability, or where another exception to the rule against hearsay evidence applies.
- However, a party’s affidavit should not rely significantly on hearsay evidence as the basis to support or refute allegations. Affidavits from individuals with firsthand knowledge of the information should be filed, and if necessary, leave should be sought to file additional affidavits that are permitted under the Court’s Practice Direction.
- In family cases, opinions of third parties (such as doctors, teachers, Children’s Aid Society (“CAS”) workers, or therapists) are often relevant to the outcome of a case. Their opinions should not be in the text of a party’s affidavit, nor should reports with opinions from such professionals be attached as exhibits to an affidavit.
- It is also not proper to include within an affidavit text of a published report or other external sources from purported experts where their opinions are expressed.
- Instead, the purported expert who is expressing an opinion should prepare their own affidavits. If expert opinion evidence is to be relied upon, it must be provided by an expert and the requirements under rule 20.1 of the Family Law Rules must be met. It is not common to have expert opinion evidence on a motion; expert opinion evidence is most often relied upon at trial where their opinion can be tested under cross-examination. If opinion evidence is to be admitted on a motion, leave should be sought for the admission of an affidavit of an expert.
- However, where an exhibit is a business record that merely records an act, transaction, occurrence or event (and not an opinion), it may be attached to an affidavit as an exhibit: (please refer to the Ontario Evidence Act). Examples include a child’s attendance record maintained by a school, work or employment records, and records maintained by a CAS that records facts or observations of a CAS worker.
- Only necessary, relevant and material exhibits should be attached to an affidavit. The exhibit must be legible. The text of the affidavit that references the exhibit should explain specifically what the exhibit is intended to demonstrate.
- Counsel (and by extension, parties) have a duty not to mislead the Court. When attaching extracts of text or email messages as exhibits, counsel should carefully consider if several pages of text/email messages, rather than a single page, should be included as an exhibit to ensure the context in which the message was sent and received is properly understood by the Court. A single page of text/email messages, with only one statement being relied upon by a litigant, may be insufficient to reach a factual conclusion or inference if the context in which the message was sent and received is not readily understood, or if only a single page of the text/email message is entered.
- Counsel (and by extension, parties) may also consider, within the text of the affidavit, explaining the context in which the message was sent or received. If not readily apparent, the text message should make clear who is saying what.
- It is a best practice to hyperlink exhibits within an affidavit to permit a judge to review and consider exhibits efficiently. Hyperlinks allow judges to quickly look at the exhibit while reading the text of the affidavit, and then return to where they left off in the affidavit.
- Font, spacing and page limits prescribed in the latest Court’s Practice Direction must be followed.
- It is improper to attach, as an exhibit to an affidavit, an affidavit of a different person to overcome the restriction in the Court’s Practice Direction that only one primary affidavit may be filed for a motion or cross-motion.
- It is poor advocacy to repeat the parties’ full names each time a party is referenced in an affidavit. If an Affidavit is sworn by a party, they should refer to themselves in the first person (i.e., “I” or “me”), rather than the third person (i.e., “The Respondent, or “she”). Use of the third person suggests that the words in the affidavit are not facts sworn by an affiant, but legal argument of the lawyer who prepared it.
- An affidavit should be reviewed for proper spelling and grammar prior to the party swearing an affidavit. While minor errors will rarely impact the outcome of a motion, the improper use of grammar can raise questions about what the affiant intended by the words used.
- It is improper to mention the substantive contents of an offer to settle when the substance of the offer is the subject of the motion. Nor is it proper to refer to discussions at a case conference, settlement conference or trial management conference, including opinions expressed by a previous judge involved in the case.
In the case of Alsawwah v Afifi, 2020 ONSC 2883, Justice Kurz reminded both lawyers and parties of how damaging improper affidavits can be in what they say. It becomes a permanent and public record. They add nothing to supporting that party’s position at the motion. He said:
Family litigation is far too corrosive of once-loving relationships, and far too soul destroying for emotionally scarred litigants, to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.
Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents’ struggle, can leave their field of battle scarred for life.
The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.
Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel, (and not as a) flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize this truth …, all too many, unfortunately, fail to do so.
Conclusion
As we struggle with strict deadlines and tight financial restraints, lawyers and self-represented parties must learn to be efficient with both resources when drafting affidavits. Asa result of the Covid-19 pandemic, the courts have implemented limits on the number pages that can be used in an affidavit, including limits on excessive exhibits. Some jurisdictions are more lenient with its enforcement of these rules, whereas some are stricter. Know what your court expects of you!
There is another related resource – judicial time – that is extremely limited these days, so please appreciate that the judge who is reading your client’s affidavit (or if you are self-represented, your affidavit) expects/demands that you will get to the point, quickly and effectively. If you don’t, then please remember the other popular saying: “you only get once change to make a first impression. So make it a good one.”