Affidavits are a critical component of legal proceedings in Ontario, providing sworn evidence to support a case. If you’re involved in a legal matter, whether civil or criminal, you may be asked to provide an affidavit as part of your evidence. However, preparing an affidavit can be complex, and ensuring it meets all the requirements is essential. An experienced Toronto criminal lawyer can help prepare your affidavit to ensure all relevant information is included.
What is an Affidavit?
An affidavit is a written statement sworn or affirmed to be true in front of a lawyer, notary public, or commissioner for taking affidavits. The person who signs the affidavit must also provide proof of their identity by presenting valid government-issued photo identification. An affidavit is legally binding evidence that can be used in a court case.
An affidavit typically contains a statement of facts relevant to a legal matter, such as an admission or denial of certain events. It is often used to support the claimant’s arguments in court and may be the only evidence presented at trial. Affidavits can also be part of a settlement agreement outside of court.
Affidavits are commonly used in family law matters such as divorce, child custody, support agreements, probate matters, landlord and tenant disputes, and other civil cases.
Types of Affidavits
Several types of affidavits are used in Ontario, each with a unique purpose and requirements:
Affidavit of Service – proves that someone was served with a legal document or notice. It is typically signed by the person who served the document.
Affidavit of Capacity – proves that a person can understand a document and enter into a legal agreement or contract. A lawyer or other legal representative usually signs this type of affidavit.
Affidavit of Execution – confirms that someone has signed a document. It is usually signed by the person who witnessed the signature, such as a lawyer or notary public.
Affidavit of Identity – proves the identity of a particular person. It is typically signed by someone who knows the individual, such as a family member, friend, or co-worker.
Affidavit of Support – confirms that someone will financially support another person. A family member or other financial supporter typically signs it.
For an affidavit to be valid, it must meet specific requirements established by law:
- The affidavit must be in writing and signed by the person making it, known as the affiant.
- The affiant must swear or affirm that affidavit’s contents are true before an authorized witness. This is usually done before a commissioner of oaths, lawyer or notary public.
- The affiant must also have personal knowledge of the facts stated in the affidavit.
- The affidavit should not contain any opinions or conclusions, just facts.
- The affiant should also provide evidence to support such facts as names, dates, and documents.
- The affidavit should be legible, dated, and include the affiant’s name and address. It should also include the name of the person who administered the oath, such as the commissioner of oaths, lawyer, or notary public, along with the date and signature.
The affidavit will be considered valid in Ontario if all these requirements are met.
How to Swear or Affirm an Affidavit
In Ontario, an affidavit is a written statement that has been sworn or affirmed by the person making it. The person making the statement must take an oath or make a solemn declaration before an authorized person. This person is usually a Commissioner for Taking Affidavits.
To swear or affirm an affidavit, you must first sign it. Then you must go to a Commissioner for Taking Affidavits. This is usually a lawyer, but it can also be someone appointed by the court. At the commissioner’s office, the commissioner will ask you to swear or affirm that the information in the affidavit is true. This can be done orally or by signing a document known as an affidavit form.
If you are swearing an affidavit, you will have to put your right hand on a bible or other religious book and repeat an oath, such as, “I swear (or affirm) that the contents of this affidavit are true.” Alternatively, if you affirm an affidavit, you will have to raise your right hand and say, “I do solemnly declare that the contents of this affidavit are true.”
After you have sworn or affirmed your affidavit, the commissioner will sign it and provide their official seal. Once this is done, your affidavit is complete and ready to be presented to the court.
Common Mistakes in Preparing an Affidavit
When preparing an affidavit, it is essential to be mindful of common mistakes that could lead to the affidavit being rejected. These could include the following:
Using Improper Language – The language used in an affidavit must be clear and precise, as any ambiguity can result in a court rejecting the affidavit. Facts must support any statements made in the affidavit; otherwise, the court may find them unreliable.
Improperly Signing and Dating – The affidavit must include the signature of the person making the affidavit and must be witnessed by a commissioner of oaths or a notary public. The date the affidavit was signed must also be included in the document. If these details are omitted, the court may not accept the affidavit.
Improper Identification of Parties – All parties must be correctly identified in the affidavit. This includes ensuring that the names and contact information of all witnesses and other parties involved in the case are accurately provided. If any details are omitted or incorrect, it could lead to delays or other complications.
Dishonesty and Inaccuracy – An affidavit must always remain true and accurate. Any changes or additions to the affidavit must be reflected in a supplementary affidavit and resubmitted to the court. Failure to do so could result in perjury charges.
The Importance of Truthfulness in Affidavits
Perjury is a severe offence in Ontario and carries with it significant consequences. Under the Criminal Code of Canada, anyone who commits perjury is guilty of an indictable offense and can face up to 14 years in prison. It is essential to understand the seriousness of perjury and to ensure that all information presented in an affidavit is accurate and truthful.
Anyone giving false evidence under oath or otherwise making a false statement can be charged with perjury. Furthermore, the person who has made the false statement can be accused of perjury, whether the statement is proven to have affected the outcome of the case. Someone who makes a false statement on an affidavit can also be held civilly liable for damages if the false statement causes harm to another party.
While an individual may be able to recant or retract a statement made under oath before it is discovered to be false, this will not protect them from facing criminal charges. Individuals are always best served by only providing true and accurate information on their affidavits.
Affidavits play a crucial role in legal proceedings in Ontario. Whether you’re involved in a civil or criminal case, preparing an accurate and truthful affidavit is essential to the outcome of your case. Seeking legal advice from a qualified professional can provide invaluable support while preparing an affidavit. With the proper preparation and guidance, you can ensure that your affidavit meets all the requirements and helps you achieve a successful outcome.
Contact Zamani Law today for assistance with preparing your affidavit.