Affidavits: Drafts and Responses...Your advice

[oink]

Came across this on the WWW

DON’T attach letters to affidavit

o Instead, where possible, you should have the author of the letter swear an affidavit
containing the information you want to include in evidence before the court.

DON’T attach expert report to affidavit of your client, law clerk etc

o Instead, you should have your expert swear an affidavit which attaches as an exhibit
their own report

DON’T forget to include affidavit evidence supporting request for disclosure

o If it is not self-evident from the disclosure request letter itself, on a motion for
production of disclosure, it is advisable to have the expert swear an affidavit
explaining why the information/disclosure requested is relevant.

Question: What is the author of your letter is out of the country then and it's not possible to get them to sign the affidavit?

 

[standing on the sidelines]

I am thinking that the letter wont hold any weight. The author hasnt sworn it and cannot be cross-examined. As far as the judge knows the person presenting the letter wrote it themselves, not the person they claimed did.

 

[Mess]

If the other party does not contest a piece of evidence it is accepted as true. The judge doesn't care so much if it is a letter signed by someone, or an affidavit, unless/until it is contested. If the other party contests a letter as forgery, that is when you must jump through hoops to prove it. An affidavit is sworn and notarized so it is by definition an accurate record of someone's words. It can still be contested in cross examination. If the person who swore the affidavit is not available for cross-examination, then the affidavit carries no more weight than a letter.

 

[oink]

Thanks for that...I ask because I have a letter from Hotel across the border that we stayed at (child and myself) during long weekends, and the manager that sent the letter (with hotel heading) and signature, is just confirming that we were there. Additionally, stbx signed consent letter and I have receipts

 

[oink]

Interesting points in what is relevant in affidavits.....found this in a case law on canlii

The husband has also complained that portions of the
wife's affidavit are scandalous. Interim custody is in issue
and matters deposed to which are directly relevant to custody
will not be struck as they cannot be said to be scandalous as
they are relevant. There are some matters deposed to in the
wife's affidavit which are not directly relevant to the issues
which the court might consider scandalous.

However, in this case these matters appear to have been deposed to by the wife
in response to matters raised improperly by the husband in his
affidavit. As previously stated, affidavits in family
proceedings should only contain relevant and important
evidential matters. Past conduct of the parties will not be
considered in an interim custody application, unless the
conduct is relevant to the ability of the party to act as a
parent.

The husband raised in paragraph 4 of his affidavit
the circumstances under which the parties separated. In this
case the breakdown of the marriage is not relevant to the
interim custody application. That reference by the husband
only served to cause the wife to respond in her affidavit with
further irrelevant material. I will not in this instance
strike the portions of the wife's affidavit sworn in response
to matters improperly raised by the husband. However,
paragraph 4 of the husband's affidavit, which raises the
irrelevant issue of the circumstances of the separation, will
be struck.

Also, the husband in paragraph 14 made reference to
the wife's cosmetic surgery. This surgery is not relevant to
the issues before the court. This reference is clearly
offensive and included for an improper purpose. It is
scandalous and all reference in paragraph 14 of the husband's
affidavit to this matter will be struck out.

In this case, both parties have filed material which
does not comply with the Rules. Normally, costs would be
ordered against the offending party. However, under the
circumstances costs will be costs in the cause.

CanLII - 1995 CanLII 5715 (SK QB)