This reality sheet explains what an affidavit is and when you might want to file one. It additionally offers basic information about what you’ll be able to and cannot include in an affidavit.
Prudence suggests that the drafting lawyer be someone aside from the lawyer looking for to acquire the affidavit, for two causes. Firstly, the lawyer in search of the affidavit will wish to decrease the notion of the shopper’s influence in obtaining the affidavit; see for instance the excoriating feedback of the British Columbia Provincial Court within the 2009 case of Director of Child Family and Community Service v. T.T. Secondly, the lawyer searching for the affidavit will need to minimize the likelihood of changing into a witness in his or her personal trial, explaining how he or she assessed the kid’s competence to provide proof and his or her function in preparing the kid’s affidavit; there isn’t any privilege within the relationship between counsel and witness.
There are conditions the place it’s possible you’ll need an affidavit of marriage. This doc declares that you are legally married to a different individual. Usually, a certificate of marriage would perform the identical operate, but couples can use an affidavit of marriage if they are unable to find their marriage certificates. This affidavit could also be necessary to apply for a overseas visa, for insurance coverage functions, or to apply for certain financial accounts. The doc can also be helpful in states that acknowledge common regulation marriage ; if you’re widespread legislation married, then you’ll not have a wedding certificate.
The provisions of the Canada Evidence Act related to kids’s affidavits are ss. 16 and sixteen.1, and the provisions of those sections are instructive to both the lawyer considering obtaining the affidavit of a child and the lawyer retained to arrange one. In essence, children who are fourteen and older are presumed to be competent to present proof, together with by affidavit, within the manner of grownup witnesses. Counsel in search of to have the affidavit of such a toddler excluded must be prepared to problem the psychological capability of the child; I can’t imagine many children who would be receptive to this line of enquiry.
Children’s affidavits could be extremely persuasive in household legislation instances, significantly when they handle issues of importance and specific an unambiguous preference which is clearly that of the kid. However, merely soliciting the affidavit, whether it’s utilized in court or not, includes the child in the conflict between his or her mother and father and is fraught with peril in consequence. There are other, higher means of eliciting children’s views and placing them before the court, including views of the kid reports and judicial interviews, all of that are mentioned intimately in L.E.G. v A.G. In my view the appropriateness of these alternate options ought to be thought-about very fastidiously before the choice to obtain a child’s sworn statement is made.