Family Law
#9 - Affidavits
STANDARD
A lawyer must ensure that the contents of an affidavit filed in support of a proceeding
are relevant to that proceeding and provide the evidence and information required by the
courts as outlined by legislation, regulation, and common law.1
A lawyer should avoid language which embellishes or dramatizes an event unless such
language is relevant in the circumstances and does not contain inadmissible
evidence, unnecessary commentary and/or opinion.2
A lawyer must balance the reasonable needs, desires, expectations, and instructions of the
client against the requirements outlined in the rules of court, legislation, regulations and
common law when drafting an affidavit.3
Reference Materials
Notes:
1.Paranet Services Inc. v Brett Robert Barefoot, 2000 NSCA 75 (CanLII) – discussion regarding appropriate affidavit contents; Veinot v Dohaney, 2000 CanLII 4513 (N.S.S.C.) - affidavit by lawyer.
2.Village Commissioners of Waverley et al. v Nova Scotia (Minister of Municipal Affairs) et al. 1993 CanLII 3403 (NS S.C.), 123 N.S.R. (2d) 46 (S.C.); Tkach v. Tkach (1984) 147 N.S.R. (2d) 378 (T.D.); C.K. v C.S. (1996) 157 N.S.R. (2d) 387 – appropriate content in an affidavit; Barefoot v. Paranet Services Inc., 2000 NSCA 75 (CanLII), 185 N.S.R. (2d) 88.
3. Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998), as amended – Chapter 13 – Duties to other Lawyers; Chapter 14 – Duties to the Court.
Related Legislation:
Civil Procedure Rules
Part 9 Rule 39 - Affidavit - PDF version
Additional Commentary:
MacKay v Boucher, 2001 NSCA 171 (CanLII), 199 N.S.R. (2d) 248 (N.S.C.A.) – award of 75% solicitor-client fees against deponent of a false affidavit.
C.K. v C.S. (1996) 157 N.S.R. (2d) 387 – the time to deal with objections to affidavit contents is at a pre-trial conference.
Practice Tips:
Goodfellow, Walter R.E / An introduction to chambers practice : notes (April 2009), in Chambers practice. [KB 190 N935CP 2009]
DOWNLOADS
Related Ethics:
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998), as amended.
Chapter 10 – The lawyer as an advocate (see Commentary 10.11 - Constraints on lawyers giving evidence by affidavit).
Chapter 13 – Duties to other Lawyers
Chapter 14 – Duties to the Court.
ARTICLES
Eaton, K. / Practicing Ethics: Advocates’ Affidavits (1978) 5:2 NSLN 1.
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Approved by Council on March 25, 2011