Thread: Hearsay Rules
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Old 03-08-2006, 07:14 PM
logicalvelocity logicalvelocity is offline
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Grace,

I am not sure if you are referring to heresay rules when it comes to affidavit writing, but I did come across this

How to prepare an affidavit...

An affidavit is a written statement made on oath about facts which are personally known to the person making the affidavit. Because an affidavit is sworn to be true or affirmed to be true, it is evidence of the facts that it sets out, just as if the facts were given as oral evidence at a trial. Affidavits are formal legal documents.


Formal Requirements

The contents of an affidavit are set out in numbered paragraphs. It is a good idea to state who you are and how you have personal knowledge of the facts that you are describing in the first paragraph, and to say why you are swearing the affidavit in the second paragraph. For example, in the first paragraph you must say something like:

I am the Plaintiff in this matter, and as such have personal knowledge of the facts hereinafter deposed to.

In the second paragraph you might say:

I make this my affidavit in support of my application by Notice of Motion, dated 1 January 2003.

If you are having a friend or relative make the affidavit, the first paragraph might read:

I am the sister of the Plaintiff in this matter, and as such have personal knowledge of the facts hereinafter deposed to.

Every page of your affidavit must be numbered, including each page of any exhibits you might have attached.

You must put, in the upper-right hand corner of the first page, the name of the person swearing the affidavit, the sequential number of the affidavit of the affidavits sworn by that person so far in the action, and the date the affidavit was sworn on. For example, if you are Jane Alice Doe, and this is your third affidavit, you would put this:

J.A. Doe, #3
1 February 2003

Once your affidavit is done, you must have it "notarized." Affidavits can be notarized by lawyers, notaries public and certain court clerks, or anyone else who is authorized to take oaths. The lawyer or notary public will ask you whether you understand the contents of your affidavit and then ask you to swear an oath or affirm that the contents are true. If you say yes, the lawyer or notary will ask you sign your name to the affidavit and will watch as you sign the document. The lawyer or notary will then sign his or her name and fill in certain information about where the affidavit was notarized and the date and so forth. Note that the lawyer or notary will ask you to produce government-issued photo identification, like a driver's licence, to prove that you are who you say you are.

After you've had your affidavit notarized, make at least four copies. The original is filed in court and another copy or two, depending on the circumstances, must be sent to the other side. Make sure you keep an extra copy for yourself!

Telling Your Story

Following the introductory paragraph, tell your story in an orderly manner. Remember to keep things as simple as possible and avoid irrelevant information; the easiest way to do this is to ask yourself if a stranger would understand what you've written. If you don't think a stranger would understand what you're talking about, you should probably rewrite your affidavit!

Your goal is also to explain things in an easy-to-understand way for the judge. The judge will not know who "Phil" is unless you've introduced Phil somewhere else in your affidavit. Nor will the judge understand what "the other car" means, unless you've already described which cars you have and who owns them. You must not assume that the judge knows everything about you. The judge won't. Again, ask yourself if a stranger would understand your story.

In order to make things as simple as possible, the author usually breaks his affidavits down into sections following the initial introductory paragraph:

Application:

State what you're asking the court for. If you're responding to an application, tell the court your position on each of the claims the applicant is making.

Background:

Describe who you are, who the other side is, when your relationship started and stopped, who your children are and how old they are, when litigation started, and any significant orders that have been made since litigation started.

Circumstances:

Describe the immediate circumstances that triggered the application to court and anything significant that happened since. This should be the part where you provide the facts in favour of your application or in opposition to the applicant's application.

Summary:

If necessary summarize your position and perhaps describe the order that you want the court to make.

Affidavits drafted by the author often look something like this:

I am the Plaintiff in this matter and as such have personal knowledge of the facts hereinafter deposed to.

Application at Bar

In my application, by Notice of Motion dated 1 January 2003, I seek an Order that the Defendant be restrained from removing the children, Sally Ann Doe, born on 1 January 1998, and John Fred Doe, born on 1 January 2000, from ANYTOWN, ANYWHERE, and an Order that the Defendant pay support to me for the benefit of the children.
In the Defendant's application, by Notice of Motion dated 1 January 2003, he seeks an Order that I pay spousal support to him. I oppose the Defendant's application as he is employed full-time and is self-sufficient.

Background

I am 32 years old and am presently employed as an account by the firm Smith Smith and Smith. I earn approximately $42,000 per year.

The Defendant is 34 years old and works full-time as a bricklayer with ABC Contracting. He earns about $38,000 per year.

The Defendant and I met in the summer of 1996, and moved in together on 1 January 1997. We lived in a common-law relationship until 1 Janary 2002, when the Defendant left our home.

The Defendant and I have two children, Sally Ann Doe, who is 6 years old and in Grade 2 at Foggy Bottom Elementary, and John Fred Doe, who is 4 years old and in pre-school at ABC Community Centre.

I started this action on 1 July 2002, when I filed my Writ of Summons and Statement of Claim. I essentially seek an Order that I have sole custody of the children, that we share joint guardianship of the children and that the Defendant have access to the children every other weekend. I also seek an Order that the Defendant pay child support to me for the benefit of the children.

On 1 September 2004, Mr. Justice Smith made an Order that the Defendant and I have interim joint custody and interim joint guardianship of the children. The honorable Justice did not make an order for access or child support, but the Defendant has been seeing the children on weekends and has been paying $200 per month to me as child support.

...and so on.

Circumstances of Application

On 25 December 2002, the Defendant had Sally and John from noon until 7:00pm. We had agreed that he would return the children to my home at that time.

The Defendant did not return the children as we agreed. I phoned him to find out what was wrong at 8:00pm. He told me that he was keeping the children until 27 December 2002 because his family wanted to see them on Boxing Day. He also said that he the children would be moving to Calgary, Alberta.

The Defendant has family in ANYTOWN. I am afraid that he intends to remove the children from ANYTOWN, where they have spent all of their lives and where they have family and friends.

...and so on.

Summary

As a result of the Defendant's conduct I believe that the Defendant may decide to take the children to ANYTOWN and seek an Order that the Defendant be restrained from removing our children from ANYTOWN without my express permission or the further Order of this Honourable Court.

Remember to tell your story in the first person. It is you who is telling your story, and you are "me," "myself" or "I," not "the Plaintiff" or "the Defendant."

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