Affidavit for a Parenting Case in Ontario: What to Write and Avoid

If you are asking a court for a parenting order, or to change one, you will usually have to put your story in writing and swear that it is true. That sworn document is an affidavit. For many parents it is the most important piece of paper in the early stages of a case, because a judge may read it long before meeting anyone.

This article explains in general terms what belongs in a parenting affidavit, what tends to hurt a parent's credibility, and how exhibits and page limits work. It is general information, not advice about your own case, and a lawyer can review a draft before you swear it.

What an affidavit does in a parenting motion

A family motion uses Form 14 (Notice of Motion) and Form 14A (Affidavit), and the affidavit must be sworn or affirmed. Swearing means you are formally promising the contents are true, so every statement should be something you personally know or can clearly explain how you learned.

In most cases a party must attend at least one case conference on the main issues before bringing a motion for a temporary order, such as where the children will live and how much time they spend with each parent. That requirement does not apply in cases of urgency or hardship, but a judge may order costs against a party who brought an unnecessary motion before a conference. Whether your situation is truly urgent is worth confirming with a lawyer before you file.

Write for the question the judge must answer

Under the Divorce Act, the court considers only the child's best interests when making a parenting order, and it must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. Parents who were never married or are not divorcing need a parenting order under Ontario's Children's Law Reform Act instead. Either way, the judge is looking at the child, not at who was the better partner.

The best-interests factors give you a useful outline. They include the child's needs given their age and stage of development, including the need for stability, the history of care, each parent's willingness to support the child's relationship with the other parent, any plans for the child's care, each person's ability and willingness to care for the child and to communicate and cooperate, any family violence, and any relevant civil or criminal proceedings.

• Describe who has done what for the child day to day, such as school, medical visits and routines.
• Set out your plan for the child's care in specific terms.
• Explain how you have supported, or will support, the child's relationship with the other parent.
• Describe concrete safety concerns, if any, with dates and facts.

What to leave out

Past conduct, such as a mental health history or past substance use, is not considered under the Divorce Act unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact. If you include an old incident, be ready to explain how it affects the child's care now.

Judges also look at each parent's willingness to support the child's relationship with the other parent. An affidavit full of insults, speculation or opinions about the other parent's character can undercut that picture. A calmer approach is to describe what happened, when, and what effect it had on the child.

• Name-calling, sarcasm and exaggeration.
• Guesses about what the other parent thinks or intends.
• Long histories of the relationship that do not connect to the child's care.
• Quoting what the child said in a way that puts them in the middle. The court considers a child's views and gives them due weight according to age and maturity, and there are formal ways to bring those views forward, such as a report from the Office of the Children's Lawyer.

Exhibits, page limits and format

In the Superior Court, each party may file one primary affidavit on a motion, limited to 12 pages of narrative for short or regular motions and 20 for long motions, and exhibits should not exceed 10 pages. These limits do not apply to hearings about the wrongful removal or retention of a child. The practice direction is updated from time to time and the Ontario Court of Justice has its own rules, so check the current requirements for the court where your case is.

Choose exhibits that prove a key point, such as a short run of messages that shows a pattern of communication or a school report that shows the child's needs. Refer to each exhibit by letter in your paragraphs so the judge knows why it is there. Number your paragraphs, keep them short, and stick to one topic in each.

Practical steps before you swear it

• Confirm which court you are in and which page limits apply.
• Gather your key documents, then pick only the ones that prove your main points.
• Draft the facts in date order, tied to the child's needs.
• Re-read it and cut anything that is insult, opinion or old history with no link to the child.
• Check that every statement is true and that you can explain it under questioning.
• Swear or affirm it before the right person and serve it as the court rules require.
• Ask a lawyer to review the draft, especially if safety is an issue or the motion is urgent.

Frequently asked questions