Preparing Evidence and Affidavits for Ontario Family Court

An affidavit is your written evidence, sworn or affirmed to be true. It is worth taking care that your affidavit is clear and honest, and because how it is used depends on your situation, it is worth confirming with a lawyer.

This article explains where affidavits are used, how to organize one, what to leave out, and the timing rules that apply. It is general information, and a lawyer can review your specific document.

Where affidavits are used

Affidavits appear throughout a family case. If you are applying for a restraining order and need an urgent temporary order, you use Form 14 (Notice of Motion) and Form 14A (Affidavit). A motion to change a final order is brought on Form 15, sworn before a commissioner.

Parenting claims require a Form 35.1 affidavit filed with the application, answer or motion to change, and it must be sworn before a commissioner for taking affidavits. When no answer has been filed, a judge may decide the case on an affidavit for uncontested trial, Form 23C.

At trial, a judge may order that most or all of a witness's evidence be given by affidavit.

What to include

Focus on facts you personally know: what happened, when, and how it affects the issue the court is deciding. Write in numbered paragraphs, in the order things happened, in plain words. Attach key documents such as messages, financial records or school records, and refer to them clearly.

• The specific order you are asking the court to make, and why the facts support it.
• Dates, places and the people involved, kept short and factual.
• Supporting documents. If you claim fees or expenses for costs, the claim must be backed by satisfactory documentation.
• For a non-parent claiming decision-making responsibility, a police records check obtained within 60 days, or proof that one was requested.

What to leave out

Courts have rules about what evidence they will rely on, and a lawyer can confirm how they apply to your document. As a practical matter, avoid these:

• Insults, name-calling and anger about the other person, which distract from the issues.
• Guesses or opinions about what the other person thinks or intends, instead of what you saw or heard.
• Long histories that have no link to what the court must decide.
• Legal arguments, which belong in your submissions rather than your evidence.
• Anything you are not sure is true.

If you discover that information in your Form 35.1 affidavit is incorrect or incomplete, you must correct it as soon as you discover it. Judges and court staff cannot give legal advice on what to write.

Swearing it and meeting deadlines

Some affidavits must be sworn before a commissioner for taking affidavits, such as Form 35.1 and Form 15. Do not sign until you are in front of the commissioner.

Local practice directions can add regional requirements, so check with the court office.

What to do next

• Identify which form your step requires and who must swear it.
• List the facts you personally know and gather documents that show them.
• Draft in numbered paragraphs and read it for anything exaggerated or unclear.
• Book a commissioner and confirm the serve and file deadlines.
• Consider a 20-minute advice session with duty counsel or advice counsel at your courthouse, or free supervised drafting help at the Family Justice Centre if you qualify financially.

Frequently asked questions