What is an "affidavit"?

This word, commonly used in law, and in particular in the area of litigation (court proceedings), is widely misunderstood.

An affidavit is a sworn statement, in writing. The "deponent" (the person "making" the affidavit) provides facts which can constitute evidence for the purposes of a court proceeding. In Ontario family court, many decisions are made by Judges every day based on affidavit evidence. In other words, the actual deponents (witnesses), whether parties to the court case or not, do not appear at court and give oral evidence. Their written evidence (affidavits) are relied on by the Court to arrive at its decision.

In Ontario family court, affidavits have to be made in a certain, prescribed form (pursuant to the Family Law Rules or other, relevant legislation).

Affidavits are often accompanied by Exhibits, being other documents which are appended to the affidavit and form a part of it (by direct reference to them in the affidavit itself). These Exhibits are also evidence for the purposes of a court proceeding.

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What is "questioning"?

In Ontario family law, the term refers to giving and receiving evidence under oath. Simply put, it's a process during which a witness (often a party to a family law court case) is asked questions by the opposing party's lawyer. The answers are given under oath (they become sworn evidence) and a transcript is taken of both the questions and the answers. That transcript can then be filed with the Court and becomes further evidence in the court case.

This single term now covers under one label two steps in a court case which previously had separate names, even in family law, and that is: cross-examination (usually conducted in the context of a motion) and examination for discovery (usually held in anticipation of trial).
Questioning is a very important step in a family law case and you should discuss it with your lawyer. It requires forethought, strategizing and careful preparation, both if your lawyer is questioning the other side and if you are being questioned.

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Photo by AJJ