Any evidence (material that tends to prove something) that you wish the court to consider in the application must be set out in affidavits (written statements). Both applicants and respondents will probably prepare and deliver affidavits.
Before preparing your affidavits, consider:
- what facts your affidavit should contain to persuade the court to make the order you are asking for;
- who is the best person to swear the affidavit; that is, who has the most direct knowledge of the facts you are setting out; and
- how you want to present the information in the affidavit.
The affidavits should include only evidence that relates specifically to the application in question. You should attach as exhibits to the affidavit any documents you have relating to the subject matter of your application, such as letters, courier slips, or fax records. See Rule 10-4(8) for further information on exhibits.
If you are asking the court to make a final order in your application, the person who swears any affidavit supporting your application must have direct knowledge of the facts contained in the affidavit. In other words, the person swearing the affidavit should not give evidence about facts that someone else told him or her. Information heard from someone else is called hearsay and the court does not allow this kind of evidence in applications for final orders (see Rule 10-4(12) and (13)).
If you are asking the court to make an order that is not final in nature (in other words, an interlocutory order), then the person swearing the affidavit can include statements that someone else has informed them of, as long as the source of the information is also given. However, it is generally preferable if you can get an affidavit from a person who has the most direct knowledge of the information.
If you are the respondent and you want to respond to evidence in an affidavit filed by an applicant, you should prepare an affidavit setting out your response.
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