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News: Virtual Affidavit Commissioning In Ontario

August 6, 2020
On July 30, 2020, the Ontario government passed a new regulation allowing Ontarians to commission affidavits virtually.
Written By Alisha LiAugust 6, 2020

As the world adjusts to living with COVID-19, measures to promote social distancing have become increasingly important. This includes making sure rules governing legal processes have adapted for the times. On July 30, 2020, the Ontario government passed a new regulation allowing Ontarians to commission affidavits virtually.

An affidavit of execution is a specific type of affidavit one of your witnesses signs to confirm they were present for the signing and witnessing of your Will. Once an affidavit of execution is signed, the original Will is attached as Exhibit A.

Effective August 1, 2020, Ontario Regulation 431/20: Administering Oath of Declaration Remotely, filed under the Commissioners for Taking Affidavits Act, makes it possible for commissioning to take place online with video-conferencing technology.

What doesn’t change under the new regulation?

Despite the introduction of this new regulation, most rules around what an affidavit must include haven’t changed.

For example:

  • The deponent is still only allowed to include true statements in their affidavit.
  • The affidavit must contain their signature and the date of signing.
  • Despite the option of virtual signing, it’s still possible to have your affidavit commissioned in person.

One key thing Ontario’s new regulations don’t address is whether or not the party receiving a virtually commissioned affidavit must accept it. This means it may be possible for your recipient to reject a virtually commissioned affidavit.

To avoid this ever becoming a reality, it’s a good idea to call your local courthouse and ask them if they accept virtually commissioned affidavits.

Requirements of a virtually commissioned affidavit

With the introduction of virtual commissioning come some security concerns. It could be easier now to fraudulently swear affidavits, or otherwise take advantage of the new commissioning process.

To limit the risks of fraudulent behaviour, O. Reg. 431/20 imposes a few requirements for virtual commissioning:

      1. The deponent and the commissioner must be able to see, hear, and communicate with each other in real-time through the entire process.
      2. The commissioner must confirm the deponent’s identity. Traditionally, the deponent would show them an original government-issued photo ID at the commissioner’s office. With virtual commissioning, the commissioner might ask them to send a photocopy of their ID before the meeting. They might also ask the deponent to show them their ID again at the start of their meeting.
      3. The affidavit must say where both parties were during the commissioning. This doesn’t have to include an exact address but should mention their city/town/municipality.
      4. The affidavit must also mention it was administered in accordance with the new virtual commissioning regulations. The Law Society of Ontario gives one example of what this could look like if both people were in the same city/town:

5. If the commissioner’s appointment is limited in duration, place, or purpose, they need to indicate the limitation under their signature using a stamp approved by the Attorney General or their delegate.

6. The commissioner needs to take appropriate precautions in administering the affidavit. For example, they should make sure the deponent knows what they’re putting their signature on.

The commissioner also needs to keep a record of the administering process. This doesn’t necessarily mean they need to record the entire conversation and store it on their computer. Instead, commissioners can satisfy this requirement by:

  1. Maintaining a log of the commissionings they performed; or
  2. Retaining a copy of the virtually commissioned affidavits.

If the commissioner wants to record any aspect of the meeting, they need to tell the deponent (and anyone else in the meeting) they intend to do so. For example, if the commissioner wants to take a screenshot of the deponent holding their ID, they need to tell them beforehand.

The process of virtually commissioning an affidavit

Each commissioner will have their own preference in how the meeting will go. However, your witness’ virtual commissioning experience should look something like this:

  1. Before the call, the commissioner asks them for a copy of their photo ID, their affidavit, and any exhibits to the affidavit. (The commissioner will print a copy of this themselves for the video call.)
  2. At the start of your call, the commissioner asks them to hold up their ID to verify their identity.
  3. The commissioner reviews every page of their affidavit (and exhibits) with them. They do this to check their documents are identical.
  4. The commissioner then administers the oath or affirmation. They will ask your witness to confirm the oath/affirmation and watch them sign their affidavit.
  5. The commissioner asks for a high-resolution copy of the signed affidavit. They have to make sure the signed copy is identical to the copy they had during the meeting.
  6. They will then print, sign, and commission the affidavit and send a copy back to your witness.

This process may vary depending on your situation. For example, things could play out differently if you need an affidavit originally signed by both parties. In that case, your commissioner might ask your witness to courier their originally signed affidavit. If this is the case, they will commission it and courier the completed affidavit back to your witness.

So there you have it! With this new regulation, it’s now possible to complete the entire Will-making process without leaving your house!

Written By Alisha Li
Alisha is a Juris Doctor Candidate at the University of Toronto's Faculty of Law (year of 2022.) Pre-pandemic, she was an avid traveler and wrote about it on her blog, Two Hairy Coos.