Q: My daughter has been involved in a nasty divorce case. We believe her husband has filed false affidavits to support his case. What is the penalty for filing false affidavits in court?
A: An affidavit is a sworn statement made before a commissioner for oaths, a notary public, a justice of the peace or a lawyer. Affidavits are common in court proceedings and are often used in family matters relating to custody, support and property issues.
The consequences of filing a false affidavit can include a court reversing its earlier decision and criminal charges. In S vs. S., five years after the divorce, a wife applied for retroactive support for the children. No support was ordered at the time of the divorce because the husband swore in an affidavit that he had no means of supporting the children. In fact, he was making more than $40,000 at the time and had considerable assets. The judge hearing the application for retroactive support stated: “Not only did Mr. S lie in his August 1994 affidavit … he continues to lie. He filed a false statutory declaration when asked to disclose his current assets.” The judge went on to say “surely, if one party swears false affidavits and a false statutory declaration, this should result in a retroactive order. Otherwise, people like Mr. S are rewarded for their conduct and this would encourage others to do the same.”
Mr. S was ordered to pay more than $30,000 in arrears.
A false affidavit can also lead to a criminal charge of perjury or obstruction of justice.
In another case, SG was charged with swearing a false affidavit and with obstructing justice by swearing a false affidavit. A husband and wife separated and were fighting over custody and access. The wife took up residence with SG. On one occasion the husband went to SG’s place and an argument ensued. SG, a police officer, apparently threatened the husband.
The husband secretly taped the conversation and sent a letter to SG’s superior about the conversation. Later, SG swore in an affidavit that the alleged conversation did not take place, even though he had been made aware of the secret taping.
The trial judge convicted SG and sentenced him to nine months in prison on the charge of swearing a false affidavit. A stay of proceedings was entered on the second charge. The court of appeal ordered a new trial because the trial judge had misconstrued the evidence. A subsequent trial resulted in a new conviction and an 18 month conditional sentence.
In R. vs. W., the accused, a former prosecutor turned defence lawyer, concocted a scheme to have police breathalyzer operators refer cases to him by giving the accused the lawyer’s card. He offered payment of $250 for each referral. Upon investigation by the law society, W had the three clients who were referred under the scheme swear affidavits that they were not directed to W by the police. Further, a police officer who was part of the scheme swore that he had not received payment or been offered payments by W. In later court proceedings, all four testified that their sworn statements were false.
W was charged with obstruction of justice. Among other arguments advanced by W was that the sworn affidavits were not in fact properly sworn. The commissioner who took the statements was limited in her powers to taking affidavits only when working for her employer,
On appeal, the Supreme Court of Canada rejected this argument, saying that even if the affidavits were not properly sworn, use of them would still constitute obstruction of justice “since the appellant knowingly tendered false documents which were purported to have been duly executed.”
Whether perjury or obstruction of justice charges are warranted would be a matter for police and prosecutors.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.