Frequently Asked Questions
An affidavit is a sworn statement of facts that can be filed as evidence in court. An affidavit must be signed by the affiant (the person making the claims) and sworn before a commissioner of oaths or notary public. 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.
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.
Documents such as paystubs, employment confirmation, school admission and transcripts, e-mails, letters, and previous orders and agreements may be relevant exhibits.
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.
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 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.
If you want to file an affidavit past the time in the Queen’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.
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.
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.
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.
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 Queen’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.
The Notice of Motion must be filed and served within 4 days of you being served with the affidavit. You must indicate which sections of the affidavit you are objecting to and on what grounds. You must also provide information about when you were served with the affidavit.
An Affidavit of Documents is a list of relevant documents that relates to the issues in your case. Relevant documents are documents that may help your case or damage the other party’s case. The documents should have some relevance to the issues in the case.
Documents include such things as sound recordings, videotape, film, photographs, charts, graphs, maps, plans, surveys, books of account, and information recorded or stored on any other device.
The Affidavit of Documents should be served within 10 days of the close of pleadings. The Affidavit of Documents is not filed unless it is relevant to a pending issue at motion or trial.
Schedule A of the Affidavit of Documents lists documents that you do not object to showing the other side. Schedule B lists documents that you have in your possession but you object to showing the other side because they are privileged. You must identify the document (date of document, subject matter, title) and say why you believe that the document is privileged. The grounds for privilege are solicitor-client, litigation or statutory privilege, and without prejudice communications. Schedule C lists documents that were relevant and formerly in your possession but you no longer have. You must give enough information identifying the document, state how you lost possession of the document, and give information about where the document is now.
The time depends on what legislation you are dealing with. You will have to check the statute to confirm the deadline to appeal. For example, the Divorce Actstates that you have 30 days after an order was made to appeal the decision. The Divorce Act also states that you can’t appeal the granting of a divorce itself on or after the date on which the divorce becomes effective. The Court of Queen’s Bench Rules state that if you are appealing the decision of a Master, Registrar, or Assessment Officer you only have 14 days to appeal after the order, certificate, or decision is signed. For information on appeals to the Court of Appeal you should read:
Leave (permission from the court) is only needed in certain cases. Leave is needed to appeal a decision that is based on a consent order or that is for an order of costs against a party. If the order of costs is against a lawyer, leave is not required to appeal. You have to ask for leave from the judge who made the order.
You have to file and serve a Notice of Appeal. The Notice of Appeal should set out which judge and court is being appealed from, the place of the hearing, the date that the order was pronounced (given by the judge), the grounds of the appeal, and the relief being requested. You must also indicate whether oral evidence was given at the hearing.
If you are filing an appeal from a consent order or order of costs you must first file a Notice of Motion and affidavit asking for leave to appeal before proceeding.
You must also file an appeal book, factum, and the transcripts. The appeal book is a bound book that has copies of the documentary evidence that is relevant to the appeal. A factum is a document that contains your argument for the appeal. The four parts of a factum are
The factum should be less than 30 pages.
You should make five copies in total. Three copies of both the appeal book and factum must be filed with the court. You must also serve copies of both documents on the other party. In addition, you should keep a copy of the appeal book and factum for yourself.
The appeal book must be filed 45 days after the filing of the transcript of evidence. If no transcript needs to be filed, then the timeline is 45 days after the Notice of Appeal is filed. You must serve a copy of the appeal book on the other party within five days of filing it.
If the respondent feels that there is evidence missing from the appeal book, then they can file their own appeal book to add the missing information. The same timelines apply as to the appellant’s factum. The respondent must file the appeal book within 45 days of the transcripts of evidence where applicable, and 45 days after the Notice of Appeal where transcripts are not applicable. The factum must also be served within five days of filing it.
Yes. The respondent has 30 days to file the factum, and a further five days to serve the factum on the other party if a transcript is required.
You have to apply for an order of extension of time to appeal. You must show the court that:
You can appeal the decision of a Master to a judge of the Family Division by filing and serving a Notice of Appeal within 14 days after the order, certificate, or decision is signed. Your Notice of Appeal must set out what you are asking the court for (relief) and what your grounds are for the appeal.