Affidavits

What is an affidavit?

An affidavit is a sworn statement of facts that can be filed as evidence in court. An affidavit must be signed by the deponent (the person making the claims) and sworn before a Commissioner for Oaths, Notary Public, or Deputy Registrar for King’s Bench. Affidavits are filed in support of other court documents, such as Notices of Motion, or Notices of Application. Making a false claim in an affidavit could lead to a charge of perjury under the Criminal Code. You can find an Affidavit (Form 4D) in the Manitoba Court of King’s Bench Forms (Civil): http://web2.gov.mb.ca/laws/rules/form_2e.php?form=4D

What should I put in my affidavit?

Your affidavit should have statements of fact, within your knowledge, that are important to the matter that the court is deciding. If the evidence that you want to include in an affidavit is not within your personal knowledge this is called hearsay and the information can only be included under certain conditions. Hearsay statements can be included if you provide the statement, say who made the statement, and confirm that you believe the information to be true. Your affidavit should not include statements that are mere opinion or argument and the statements should be necessary to decide the issue, and not be included just to upset the other party.

What kind of documents should I attach as exhibits to my affidavit?

You should include documents that support statements made in your affidavit. Documents such as paystubs, employment confirmation, school admission and transcripts, e-mails, letters, and previous orders and agreements may be relevant exhibits.

Who can witness my signature on an affidavit?

Generally speaking, if you are having your signature witnessed in Manitoba, a Notary Public, Commissioner for Oaths, or Deputy Registrar can witness an affidavit. If your affidavit is being used in another province or state, a Notary Public should witness your signature, not a Commissioner for Oaths.

When do the affidavits have to be filed when I am applying to change a court order?

The Affidavit of the party applying to vary (change) the court order should be served and filed at the same time as the motion or application. The person responding is supposed to file a Notice of Opposition to Variation and their Affidavit within 20 days of when the motion or application was served on them, if they are opposing the matter. They should also file applicable financial information within the 20 days. This may include a Financial Statement (Form 70D) and other financial disclosure listed in s. 21 of the Federal Child Support Guidelines like income tax returns, notices of assessment and reassessment, and statements of earnings.

What happens if I can’t get the affidavit filed in time?

If you want to file an affidavit past the time in the King’s Bench Rules or after the time that the court allowed, you should mark the affidavit on the first page as “late” and file it with a Notice of Motion, to be heard on the hearing date in question, requesting leave (permission) to file the late affidavit. This does not apply to a motion before a judge as part of a family case that is subject to the case management process.

How many affidavits can I file?

You are allowed to file one affidavit of your evidence in support of your Notice of Motion. The responding party is allowed to file one affidavit in response. The moving party is allowed one further affidavit. This affidavit is only supposed to be in response to new information brought up in the responding party’s affidavit. It is not to be used to repeat evidence contained in your first affidavit. There is no limit on the number of affidavits you file from different third parties in support of your case. The third parties may only file one affidavit per person and they must contain information relevant to the case.

What happens if I need to share new information with the court, but I have already filed my affidavit?

You need leave (permission) from the court to file more than one affidavit (or two if you are the moving party). You must make a request to file an additional affidavit to a Master, case conference judge, or presiding judge at the hearing of the matter.

How do I challenge the evidence in an affidavit by the other party?

You can file your own affidavit, providing your own statements of fact and version of events in response to the allegations in the other side’s affidavit. In addition, you can do a cross-examination on the other side’s affidavit. To start a cross-examination you must have filed all of your affidavits and have completed any other examinations. The evidence provided by the person who is cross-examined can be used at trial. If a hearing or trial date is set, you must order transcripts for the court and the other party. You must also provide the other party with a free copy and pay any costs associated with the cross-examination to the other party, such as travel expenses.

What can I do if I believe the other party has included improper information in their affidavit?

You may respond to their affidavit with your own and dispute the claims that they made in their affidavit. However, sometimes individuals include improper information in their affidavit that is not allowed according to The Court of King’s Bench Rules and you may want to apply to expunge (delete) portions of the affidavit. If their affidavit contains scandalous, vexatious, irrelevant, opinionated, or repetitive information you may be able to file a Notice of Motion to Expunge. Scandalous and vexatious statements are comments in your affidavit that were not included to decide the relevant issues. They were just put in the affidavit to upset the other party. Also, you can’t give your opinion or argue for a certain outcome in your affidavit. You are supposed to include the relevant facts that allow a court to decide the issues. A case conference judge may provide directions on motions to expunge all or part of a pleading or document, such as an affidavit. The case conference judge can limit such motions or dismiss them.