Q: A neighbour is involved in a dispute that is before the court. His lawyer phoned, wanting me to give him an affidavit. I have no idea what that is. Should I do it?
A: I assume that you have some personal knowledge of the facts behind this legal action, facts that you could testify to in court. If not, then you shouldn’t do it.
An affidavit is used primarily in civil proceedings. It is a written statement of a person that is signed in front of a notary public or some other person who can administer oaths.
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The statement sets out the personal knowledge of the person swearing the affidavit (called the deponent or affiant). Before that person signs the affidavit, it must be carefully read to ensure accuracy. This is because the deponent must swear under oath (or solemnly affirm) that the contents are true.
Affidavits are designed to take the place of appearing in court, swearing on the bible to tell the truth and giving verbal testimony.
However, these documents are under oath and therefore they must be absolutely true and accurate.
Generally, affidavits are written in the first person; that is, you tell your story as if you were narrating it or giving it in a courtroom. They are also generally confined to personal knowledge. In limited circumstances hearsay is admissible, depending on the type of application before the court and provided the deponent gives the basis of the second-hand information he is providing.
Also be aware that you can, in some circumstances, be cross-examined on your affidavit by another lawyer. This process differs drastically among provinces. In Saskatchewan, relatively few cross-examinations occur, but it is done frequently in Alberta.
Judges may accept all, some or none of what is set out in an affidavit. They are not bound by the contents of an affidavit, even if it is not contradicted by other material.
In divorce and child custody cases, affidavits require special scrutiny. Because these cases are so emotional, people often get carried away and wish to voice their opinion and bash their opponent.
In terms of the request for you to provide an affidavit, find out what you’re being asked to discuss. Be sure which side your affidavit will be used by. Find out how likely it is that you’ll be cross-examined. It might be that you are subpoenaed to give oral testimony at trial, but in general there is no way to compel you to swear an affidavit. It’s your choice. Just be careful in making it.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in 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.
