An affidavit is a written statement of facts that is sworn or affirmed under oath as being the truth. This means that the person whose affidavit it is has to take it to a lawyer or Commissioner of Oaths (or in some cases, a notary) to have that person witness their signature on the affidavit. A party or witness may file an affidavit as a way of giving evidence to the court.
Affidavits & Exhibits
An exhibit is a paper, document, or piece of physical evidence provided to the court at a trial or hearing or as part of an affidavit.
For many proceedings, an affidavit is required by law. For example, if you are applying to vary (change) a court order, you will file an affidavit to explain what has changed about your situation and why you are asking for a new court order. Also, affidavits are usually required for any matter going to court for a hearing or trial. An affidavit gives the court the background information necessary to sort-out your legal issue. Court time is limited, and a well-written affidavit can help to move the court process along more easily.
In Nova Scotia, there are rules that outline what an affidavit should look like and how it should be written. You can get a copy of the form from your local court, or you can find a copy online at the Courts of Nova Scotia website. The affidavit form used by the courts in Halifax and Cape Breton may be different from the affidavit form used by the Family Courts in other areas of the province. Check with your court to make sure you have the right form.
It is best that your affidavit be typed on a computer, but you can fill it out by hand, if necessary. If you fill it out by hand, you should use a blue pen, and do not double-side your pages (do not write on the back-sides of any of the pages – everything must be single-sided). Make sure your writing is neat! If the court cannot read it or it is very messy, the filing office may not accept it.
You can use as many pages as you need to write out all of your factual information – there is no page limit for an affidavit. Your whole affidavit, whether handwritten or typed, must be on plain, white, letter-sized (8.5” x 11”) unlined paper. Do not use looseleaf, legal-sized paper, coloured paper, or paper with lines on it.
Number every paragraph in your affidavit, in order. Put only one sentence in every paragraph to keep your affidavit neat and organized. It is best to leave a space between each paragraph, so it is easy to read. Do not use bullet-points in an affidavit – you should write in full sentences. You should also number the pages of your affidavit, especially if it is long.
If you are changing something in your affidavit before you have signed it, neatly cross out the mistake and put your initials beside it. If you have made a big mistake or need to remove an entire section, you may need to re-write the affidavit (or at least the page containing the change). This also applies to an affidavit that was typed, and is already printed off.
You cannot make changes to an affidavit that has already been sworn or affirmed.
Yes – the person filing the affidavit does not have to physically write or type the affidavit themselves, as long as it is in their own words. You can write or type it for them, but they must tell you what they want to say. When the affidavit is finished, you should read the affidavit to the person filing it to make sure it is what they want to say. They will still need to sign or mark the affidavit in front of a lawyer or Commissioner of Oaths.
That depends on your situation, and what issues you are addressing with the court. Only a lawyer can give you specific advice about what you should or should not say in your affidavit.
Affidavits are meant to outline facts – for example, they should describe ‘who, what, when, where’ types of information, and things that you have seen, heard, or have good reason to believe. It is not appropriate to put your opinions in an affidavit, or to use a lot of hearsay (things that you heard from other people, but did not know or see yourself).
If you are the applicant, you should include the ‘order sought’ in your affidavit, usually toward the end. This means that you will describe what order you are applying for the court to make. For example, if you are applying for a court order on custody and access of your child, make sure you explain what kind of custody you are seeking (who the child will live with, who will make decisions about the child), and what visiting arrangements you want in place (like every second weekend, etc.). If you are applying for child support, specify the amount you are looking for, such as the table amount, or special expenses for child-care, etc.
NOTE: A judge may strike (not allow to be part of the court proceeding) an affidavit that contains evidence that is not admissible, such as certain types of hearsay, or inappropriate evidence – anything that they consider to be ‘scandalous or oppressive.’ They can also strike irrelevant material from an affidavit – ‘irrelevant material’ is information that does not have anything to do with your particular legal issue. For example, if you are applying for child support and are stating in your affidavit that the other party cheated on you, this is irrelevant – it has nothing to do with the issue of child support.
The following video was made available through the Public Legal Education and Information Service of New Brunswick and Family Law NB.
In the body (the main part) of your affidavit, talk about what it is you are attaching, wherever it is appropriate. You should explain what it is you are attaching and why – what the exhibit shows or how it ‘backs up’ what you are stating in your affidavit. For example, if you are stating in your affidavit that your child’s grades and behavior in school have improved recently, you can attach report cards or letters from the school to try to prove this fact.
The proper way to refer to an exhibit that you are attaching is to say ‘Attached to this affidavit and marked as Exhibit ____ [insert letter] is ______ [enter your description of the exhibit]’. Exhibits are usually labeled with letters, so your first exhibit would be Exhibit A, your second exhibit will be Exhibit B, and so on.
When you are referring to an exhibit, you must attach a copy of the exhibit to your affidavit. If the exhibit is mentioned in the affidavit, but not attached to it, then the judge will likely ignore it. This can also cause delays in moving your application through the court process.
Your exhibits simply get attached to the back of your completed affidavit (usually with a staple) and both the affidavit and your exhibits will be sworn or affirmed at the same time.
You do not need to attach any originals as exhibits – clear, easy-to-read photocopies are fine. You should keep any originals for yourself, and bring them to court in case you need to show them to the judge. If you file an original copy of an exhibit with the court, it becomes part of the court file, and you cannot get it back.
Make sure you attach your exhibits in the order that you mention them in the affidavit. For example:
if - you refer to a mortgage in your affidavit, and then a letter from the other party, and then a picture taken of damage done to the house
then - the mortgage deed is referred to as ‘Exhibit A’, the letter referred to as ‘Exhibit B’, and the picture referred to as ‘Exhibit C’, and all three exhibits should be attached in that order to the back of your affidavit.
Each of your exhibits will have an exhibit stamp put on them - whoever is swearing/affirming your documents should have a stamp. This stamp must state the registry number, the letter identifying that particular exhibit (A, B, C...), the name of the witness, a reference to the witness’ oath or affirmation, and the date that the affidavit and exhibits are sworn or affirmed. Typically, the stamp will look like this:
This is Exhibit" "referred to
in the affidavit of
[sworn/affirmed] before me
The stamp must be on the first page of every exhibit, and not cover up any information in the exhibit. It should be placed in a blank space on the page; however, if there is no space for the stamp on the page, you must fold up the bottom right-hand corner of the page, and place the stamp there. Note that when you are then photocopying the exhibit, you must make 2 copies of this first page - one with the corner down so that you can see everything on the page, and one with the corner flipped up so that you can see the exhibit stamp.
When you swear or affirm an affidavit or exhibits, you are confirming that everything in the affidavit and exhibits is true and accurate to the best of your knowledge and belief. You can be questioned on the contents of your affidavit and exhibits in court.
A supplementary affidavit is one that is used to add on to the information given in an affidavit that has already been filed with the court. For example, if you filed an affidavit as part of your application, but a new event occurs that relates to your legal issue and you want the court to have the new information, a supplementary affidavit may be appropriate. There are rules around how many supplementary affidavits you can file, and when you can file them. In some cases, you may need a judge’s permission to file a supplementary affidavit. Check with court staff about the rules for the court you are dealing with.
A supplementary affidavit looks the same as a regular affidavit. The only difference is that the title will read ‘Supplementary Affidavit’ and you should reference the previous affidavit when you start writing. For example ‘I filed an affidavit on this issue on April 3, 2014. I now have new information relating to this issue that I will outline in this supplementary affidavit.’
This checklist may help you to make sure your affidavit is ready to file with the court.
Did I review the example affidavits provided in this workbook?
Have I included all of the information in my affidavit that the judge needs to know?
- If I am the applicant, did I explain what order I am looking for the judge to make?
If I am applying to change a previous order, did I explain the change in circumstances?
Is my affidavit typed or neatly handwritten, with numbered sentences (Supreme Court) or numbered paragraphs (Family Court)?
Is my affidavit printed on plain, white, letter-sized paper?
Did I refer to any exhibits in my affidavit?
- If I did, did I explain what they are and why I am using them?
- Are my exhibits referred to as Exhibit A, Exhibit B, and so on, in my affidavit?
- Are my exhibits attached in the correct order to the back of my affidavit?