Affidavits Unveiled: Essential Knowledge for Legal and Business Use

What is an Affidavit?

An affidavit is a written document containing statements of facts and information promised to be true by the affiant (the individual making the statement), who swears or affirms its truthfulness by taking an oath before a commissioner of oaths or a notary public. An affidavit can confirm the veracity of facts and can be submitted as evidence. It serves as a written testimony.

Affidavits are used in various contexts, including legal proceedings such as small claims court or family matters. They are also required in situations where establishing legal rights or meeting the requirements of an administrative body is necessary. For example, an affidavit of vehicle ownership may be needed when proper documentation to prove vehicle ownership, such as registration or title, is unavailable or insufficient. This type of affidavit becomes essential when there are complications in transferring a vehicle’s title, such as when the original ownership documents have been lost, stolen, or destroyed.

Whether in court proceedings or business settings, these documents ensure that the affiant’s statements are both accurate and trustworthy. To verify the truthfulness of the information in an affidavit, a person can either:

1. Swear an oath
2. Make a solemn affirmation

A commissioner of oaths (also sometimes referred to as a commissioner for taking affidavits) and a notary public are legally authorized to administer these procedures.

Understanding the Meaning of Swearing an Oath

Swearing an oath involves formally swearing to the truthfulness of the statements in the affidavit. By taking an oath, you are relying on your religious beliefs to swear that the information you have provided is true to the best of your knowledge, and you understand that false statements may be subject to penalties.

Example of an oath to be sworn: “Do you swear that the contents of this affidavit as subscribed by you are true, so help you God?”

Understanding the Meaning of Making a Solemn Affirmation

Making a solemn affirmation involves declaring the truthfulness of the statements in the affidavit without relying on religious beliefs. It is a legally binding promise that the information provided is true to the best of your knowledge, similar to swearing an oath but without any religious connotations. False statements may still result in penalties.

Example of an affirmation: “Do you solemnly affirm and declare that the contents of this affidavit as subscribed by you are true?”

Understanding Affidavits: Key Requirements in Canada

For an affidavit to be valid in Canada, specific criteria must be met:

• The affiant must swear or affirm the truthfulness of their statement under oath before signing.
• A commissioner for taking affidavits or a notary public must:
  • Verify the affiant’s identity
  • Ensure the affiant is sound of mind
  • Confirm the affiant fully understands the contents of the affidavit
  • Validate that the facts stated by the affiant are true and accurate
  • Explain the nature and the consequences of the document they are signing
• The affiant must sign the document in the presence of the authorized individual, who authenticates their signature.
• The person administering the oath or affirmation must sign and date the affidavit and supporting exhibits. Exhibits serve as supplementary evidence attached to the affidavit to support the statements made. For example, if you’re involved in a small claims court dispute with a neighbour, attaching a threatening text message as an exhibit to the affidavit will strengthen your evidence.

Once complete, the affidavit must be filed with the appropriate organization, court, or tribunal.

It’s important for the affiant to carefully review the document to ensure its accuracy and completeness, as any mistakes or omissions could lead to serious penalties. Making a false statement in an affidavit is illegal and may lead to potential charges for perjury, a criminal offence under Canada’s Criminal Code. Therefore, taking the time to ensure all the information is correct can prevent serious issues down the road.

Understanding Affidavits and Statutory Declarations

A statutory declaration is similar to an affidavit. Both are written statements of fact signed before an authorized official, such as a notary public or commissioner of oaths. However, there are key differences between the two.

An affidavit contains statements that the affiant, or the person making the affidavit, swears or affirms to be true under oath. It is commonly used in court proceedings where the truthfulness of the statement is critical. Affidavits carry legal weight similar to in-court testimonies, with serious penalties for false statements.

A statutory declaration involves the declarant, or the person making the declaration, solemnly declaring the truth of the written statements without taking an oath. This document is often used in non-court settings and serves as a substitute for an oath.

Statutory declarations can be required for various purposes, such as declaring marital status and residency or verifying the accuracy of documents and information.
Statutory declarations are relied upon by organizations, individuals, and government authorities for legal, administrative, or governmental requirements. They serve as important tools to prove the truth of specific information when needed.

In summary, while both affidavits and statutory declarations are formal statements of truth, affidavits are sworn under oath and typically used in legal contexts, whereas statutory declarations are solemn affirmations used in a wider range of scenarios.

When Do You Need an Affidavit?

Affidavits play a crucial role in various legal and administrative contexts. They provide evidence or support in court proceedings, assert legal rights, and facilitate administrative requests with the government. Whether you’re involved in civil litigation, family law, criminal cases, business disputes, housing matters, property issues, document translation, or Canadian immigration procedures, affidavits ensure your information is accurately documented and sworn or affirmed as truthful. Here are some common scenarios where an affidavit might be necessary:

• Contract breach disputes: In small claims court, an affidavit can outline specific breaches of contract, such as the defendant failing to make payments as agreed.
• Property disputes: In boundary disputes, an affidavit may be used to declare historical land use.
• Personal injury claims: You might use an affidavit to give a first-hand account of an incident, supporting your claim.
• Criminal proceedings: Affidavits can support witness statements or be used during bail hearings to detail reasons for granting bail, such as ties to the community and the absence of flight risk.
• Divorce cases: During a divorce, you may need an affidavit to detail the breakdown of the marriage, including information about you, your partner, your children, and any arrangements made regarding parenting responsibilities, child support, spousal support, and property division.
• Family court proceedings: Parents can use affidavits to provide background information regarding parenting responsibilities and contact when making claims related to their children.
• Estate administration: If the value of an estate’s assets changes, an affidavit might be needed to report the revised value and adjust the estate administration tax accordingly.
• Will contestations: If someone feels they have not been adequately provided for in a will, an affidavit can support their claim.
• Real estate transactions: An affidavit can assert rightful ownership of property, validating ownership during a property transfer.
• Proof of vehicle ownership: If the original ownership documents are lost, an affidavit may be required to establish ownership.
• Immigration applications: An affidavit might demonstrate financial support for a foreign national immigrating to Canada, proving the sponsor’s ability to support the individual.
• Administrative proceedings: In cases like proceedings before the Workplace Safety and Insurance Appeals Tribunal, an affidavit might authenticate surveillance evidence signed by the person who conducted the surveillance.
• Educational loans: When applying for OSAP, an affidavit may prove eligibility, such as verifying status as a sole-support parent by showing full-time child residency during the academic year and the children’s birthdates.

How to Prepare an Affidavit

Drafting an affidavit requires precision and factual accuracy. It is crucial to present only the truth, excluding personal opinions and not citing laws or authorities. Focus solely on first-hand experiences—avoid hearsay. Each statement in your affidavit should be based on personal knowledge—what you directly saw, heard, or did. If responding to an affidavit, apply the same principles. Address the statements made against you, providing your narrative and supporting it with evidence in the form of exhibits.

1. Use the correct form
   When completing an affidavit, it’s crucial to use the correct form, as these forms vary in layout and details depending on their purpose. Typically, you can obtain these forms online or from the clerk’s office at your local courthouse. For instance, if you need an affidavit for an Ontario small claims court case, you can find the appropriate form (Form 15B – Affidavit) online at Small Claims Court Forms and access online resources for help at Tips on completing forms in small claims court. It’s important to follow the specified format and use any available guidelines to prevent issues when completing and submitting your affidavit. While affidavit formats may vary slightly, they generally consist of headings and/or a title, body, and ending.
   
2. Identify yourself
   Begin your affidavit by clearly identifying yourself. Include your full legal name, address, and any other relevant identifying details. If used in court, specify your role in the matter. For instance, in small claims court, you could be the plaintiff or defendant; in family court, you might be the applicant or respondent.Write your affidavit in the first person, as if you are speaking. Example: I, Sandra Smith, of the city of North Bay in the province of Ontario, AFFIRM that the following is true . . .
3. Body of the affidavit
   The body of the affidavit is where you provide a detailed account of the facts relevant to the case or matter at hand. Each statement should be concise, factual, and to the point, avoiding opinions or assumptions. An example statement might be: “On June 5, 2024, I was present at 456 Elm Street and witnessed the incident involving a vehicle collision.”
   
4. Chronological order and numbered paragraphs
   Organize the information in your affidavit chronologically. This time-based structure enhances clarity and flow, making it easier for the reader to understand the context of events. Use consecutively numbered paragraphs to set out your facts, allowing for easy reference to specific sections by the judge or other readers. Strive to state only one fact per paragraph, limiting each to a clear, one-sentence statement. For example, “On January 5, 2024, I met with Jane Doe to discuss the project timeline.” When detailing different occurrences at various times and dates, make sure to address earlier events before moving on to subsequent ones.
   
5. Include supporting materials
   To enhance the credibility of your affidavit, include exhibits such as photographs, documents, or witness statements. These should be attached to the affidavit and referenced within the text to bolster your claims. Start by organizing exhibits alphabetically (e.g., “Exhibit A”, “Exhibit B”, “Exhibit C”) and ensure all exhibit pages are numbered consecutively.For example: “4. On January 6, 2024, I received an email from my neighbour, George Smith, detailing a sewer backup he experienced in his basement the previous day. This email is included as Exhibit A to this affidavit.”
6. Sign and swear or affirm your affidavit in front of a person authorized by law
   Complete your affidavit by signing and swearing or affirming it in front of a commissioner of oaths or notary public. They will validate your affidavit by signing and dating the jurat, noting the city/town and province where you completed it.

Get Started on Your Affidavit Today

If you’re looking for a convenient and cost-effective way to notarize your affidavit without stepping out of your home or office, consider our remote online notary services. Our notarization services are provided by legal professionals, ensuring that your documents are legally recognized in Canada.

Using our remote online notary services is simple; just upload your documents and follow the instructions at Remote Online Notary Services. We offer our services in both English and French, catering to your language preferences and ensuring we address your diverse needs.

If you require assistance with drafting an affidavit, feel free to contact us at info@ilovelaw.ca. We would more than happy to provide a quote for drafting your affidavit.

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