Thread: Hearsay Rules
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Old 03-08-2006, 07:14 PM
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Rules about Content

Only certain kinds of information are permitted in an affidavit. If your affidavit is written for use at a trial, you cannot describe things you believe are true or have heard from someone else. You can only set out information that you have actual, personal knowledge of. If you are writing your affidavit for the purposes of an interim application, however, you may include both things you believe to be true as well as hearsay.

Hearsay

"Hearsay" means anything you have no personal knowledge of but have learned from someone else; it also includes repeating someone else's statements in your own affidavit. It is hearsay, for example, to say "Sally told me that she went to the park at noon on Saturday." It is not hearsay to say "I saw Sally in the park at noon on Saturday."

Hearsay is permitted in affidavits used for interim applications. However "double" hearsay is not, nor is "anonymous" hearsay.


Double hearsay is saying something like "Frida told me that Sally said she was in the park at noon on Saturday." In other words, double hearsay is stating as a fact what someone told someone else.

Anonymous hearsay is saying what someone told you but without identifying the person who told you, like "Someone told me that Sally was in the park at noon on Saturday," or "I have been advised that Sally was in the park at noon on Saturday, but I cannot identify the person who told me that she was in the park."


Opinions

The other thing which is generally not permitted in an affidavit is "opinion evidence." Only people with special, recognized skills, like doctors or engineers or psychologists are allowed to write about their opinions in affidavits. Again, some opinion evidence is permitted in affidavits used for interim applications, however it is never permitted in affidavits prepared for trial.

The easy way to spot opinion evidence is by sentences that start with "I think..." or "I believe that..." For example, stating "I believe that Sally is not a good mother because she spends too much time in the park" is really your opinion about Sally's parenting skills; it is not a statement of fact and is not allowed in your affidavit.

Expressions of Emotion

A lot of people want to put everything into their affidavits, including how they feel about things or how they reacted to something. Don't do this. The court won't pay much attention to it, and you risk the court having a bad impression of you rather than your ex. Good lawyers will carefully winnow out statements like "I was shocked and appalled that Bob would actually do such a thing," and you should get rid of that sort of thing as well.

The court does not care how something made you feel; the court is interested in facts. Overblown and hysterical statements will undermine the credibility the court is prepared to extend to you. Statements like "I could see the anger in her eyes as she came at me," or "I couldn't believe what a rotten person Sally was," will not go over well in court.

"Never" and "Always"

Avoid using the words "never" and "always," or any other absolute statement, as it is rarely the case that something always happened or never happened. Saying "Bob never helped with the children" is an invitation to the court to discount what you're saying. Even if you did 99% of the work with the children, Bob is certain to have done something with them, and that means that "never" and "always" aren't true.

Just as over-the-top statements of emotion will undermine your credibility, so will using statements that are as absolute as "always" and "never." Instead of words like this, just say "I did virtually all of..." or "Sally rarely helped with ..."

Exhibits

Exhibits are documents that you attach to your affidavit, usually to support some point you're making in your affidavit. If, for example, you say that your income is $42,000 per year, you might want to attach your most recent T4 slip or your most recent income tax return to show that your income is in fact $42,000 per year.

Exhibits can be almost anything: a receipt, a printout of your child's school's website, a letter, a doctor's note, a company search result, report cards, a speeding ticket, a photograph, an appraisal, a bank statement... pretty much anything. If something can be reduced to paper, it can be an exhibit.

When you attach an exhibit, you have to introduce it in your affidavit. You can't just attach reams of documents to the back, you have to explain what the document is and state that the document you are attaching is a true copy of the original. Each exhibit is identified sequentially by a letter, "A", "B", "C" and so forth. For example:

I have a lovely home on two acres of land. There are three bedrooms, a sauna and an outdoor swimming pool. Attached to this my Affidavit as EXHIBIT "G" are true copies of photographs of my home.
My home is worth about $350,000. Attached to this my Affidavit as EXHIBIT "H" is a true copy of the 2003 BC Assessment for my home.
Each separate exhibit is marked as an exhibit and shows which exhibit it is. Lawyers and notaries public will have a stamp that they use to give the basic information. The stamp says something like this:

This is Exhibit "___" in the Affidavit of ___________________ , sworn before me at ___________________ , Ontario, this ___ day of ___________ , 20___ .
with a space for the lawyer or notary's signature, and the phrase "A commissioner for the taking of Affidavits for the Province of Ontario." Filled out, the stamp will read like this:

This is Exhibit "D" in the Affidavit of Jane Doe, sworn before me at ANYTOWN, Ontario, this 20th day of March, 2003.

The important thing about exhibits is that they are hearsay. Just because you've attached something as an exhibit doesn't make the statements made in the exhibit true. While objective information like a bank statement or a receipt will be taken as true, subjective information, like the contents of a letter from your mother, brother, friend or co-worker, won't be automatically accepted by the court.

This is important to understand, because lots of people want to attach testimonials and other sorts of information to their affidavits to make them look as good as possible, or to make their ex look as bad as possible. "Sally is the best mother I have ever seen, she obviously treasures her children and they mean the world to her," or "Bob is a terrible parent, who used to throw rocks at the children when they were infants to see if they'd flinch." What will the court get out of such obviously biased information? Not a lot.

The letter from your mother is hearsay, just as if you'd said what your mother told you in your affidavit. The court will accept as true the fact that your mother wrote the letter, but it won't necessarily accept what your mother says in the letter as true. If what your mom has to say is so important, get her to execute an affidavit an affidavit of her own. That is something that the court will pay attention to.

Summary

Be calm, be cool, be collected. You should tell your story in a logical, orderly manner such that a judge who doesn't know you from a hole in the ground will understand what the heck you're talking about and what you want. Avoid inappropriate expressions of emotion and stick to those facts that you have personal knowledge of when you can. You want to come across as a sane, reasoning human being, not a hysterical jumble of raw emotion.

If you have any documents that support the statements you're making, attach them to your affidavit as exhibits. Use documents that are neutral and unbiased, like a bank statement or an appraiser's report, but avoid inflammatory and subjective documents like letters from friends and relatives.

Above all, when you're done, ask yourself this: would a complete stranger know what I'm talking about? If you can't answer that question, give your affidavit to a complete stranger, your next-door neighbour for example, and find out!

LV