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On Affidavits in Support

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On Affidavits in Support

Posted September 27, 2021

Our courts are becoming increasingly frustrated with the filing of affidavit evidence in support of a position that is taken by a lawyer and is possibly inadmissible but clearly not probative on the matter at issue.  For a recent, mildly hilarious but clearly offensive example of this seeFarooq v. Hopkins http://canlii.ca/t/hthh4 . Here is a taste:
“There are very few circumstances in which lawyers – or staff members of law firms – should be filing affidavits on behalf of parties, in contentious proceedings.  This should be limited to summarizing non-contentious facts or documents, or providing an agreed upon chronology.  On some procedural motions a lawyer’s affidavit might assist in focusing on the legal issue. But as a general rule – particularly in family court (and especially in family proceedings relating to children) — parties should always file their own affidavits setting out their first-hand knowledge, observations and experiences.  If there are unique circumstances in which a party cannot file their own affidavit, those circumstances should be specifically set out.  There is no Rule that allows lawyers – or lawyers assisting lawyers – to file affidavits on behalf of parties, setting out contentious factual information, or advancing evidence dealing with the substance of a claim.  If there’s any doubt about what’s contentious and what’s not, the safer course is to simply have the party file an affidavit setting out all of the evidence.

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