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Glossary of Family Law Terminology
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Access
The opportunity to visit with a child. Under the terms of the Divorce
Act, a spouse exercising access rights is also entitled to information
about the child's health, welfare and education, unless a Court orders
otherwise.
Adjournment
When a matter that is scheduled to be heard on a specific date is put
over or moved to a later date.
Adoption
The legal process in which the natural parents’ legal rights and
obligations toward a child are terminated and given to the adoptive parents.
Adultery
Sexual intercourse by a husband or wife with someone of the opposite sex
who is not his or her spouse. Adultery is one of the ways marital breakdown
can be established. (Note: A same-sex relationship does not currently
constitute legal adultery, but the law may be changing in that area.)
Adversarial System
Refers to resolving disputes between two opposing parties through Canada's
court system. The parties present their respective sides of an issue through
evidence. The Justice acts as an impartial arbiter, weighing the evidence
and deciding how the law applies in each specific case.
Affidavit
A sworn statement, typed and signed by a person involved in a legal dispute.
It is witnessed by someone, usually a lawyer, and filed in support of
a court application.
Alternative Dispute Resolution
Refers to different ways in which disagreements can be resolved between
parties other than through litigation or the adversarial system. Some
of the alternative dispute resolution methods are Judicial Dispute Resolution,
mediation, collaborative law, arbitration and negotiation.
Appeal
In certain limited circumstances a person affected by a Justice’s
decision can ask a higher level of Court to review the decision and determine
if the Justice made a reviewable error. The Court reviewing the decision
can uphold it, change it or send the matter back to the original Court
for reconsideration. There are strict time limits on this type of review.
Applicant
A party in a litigation action who brings an issue or issues before a
judge for determination.
Application
A written request for a Judge to hear and determine an issue in dispute.
An application is commenced by filing certain documents and serving them
on the persons affected. Details of the material to be included, the document
format and the filing fees are determined by provincial and territorial
rules of court procedure.
Arbitrator
A person who is chosen by the parties to make a binding decision about
an issue in dispute that they have been unable to resolve.
Arbitration
A binding process in which disputing parties present their case to an
independent, qualified individual (the arbitrator) who renders a decision
on the matters in issue based on the evidence and testimony presented.
The parties agree in advance to be bound by the arbitrator's decision.
“Best Interest” Test
This is the overriding consideration in custody, access and mobility matters.
The Court searches for a solution that will best serve the child's interests.
Child
The Divorce Act, 1985 defines a "child of the marriage"
as a child of both spouses, a child of one of the spouses towards whom
the other spouse acts as a parent, or a child towards whom both spouses
act as a parent. Biological children, adopted children and children looked
after by a spouse may all be considered children of the marriage. A child
is someone who is under 18 years of age or who is over 18 and remains
dependent on his or her parents because of illness, disability or other
reasons.
Child Support
Monetary payments made to cover expenses for a child. Child support is
paid pursuant to the Federal
Child Support Guidelines.
Child Support Guidelines
Cohabitation Agreement
A written contract signed by a couple who are living together or is planning
to live together. It usually provides for ownership and division of property
in the event of a relationship breakdown, but may also involve issues
of financial support. In order to be legally binding it must be executed
with legal counsel and each party must receive independent legal advice
about its contents.
Collaborative
Family Law
A dispute resolution process in which the parties and their lawyers agree
in advance to work together to negotiate a mutually acceptable settlement
without Court intervention.
Collaborative
Family Lawyers of Canada
Common-Law Spouse
Refers to parties that live together in a marriage-like relationship without
getting legally married. While the precise definition varies from province
to province, it means achieving the status of a legally married spouse
for some purposes, such as support.
Confidentiality
People in certain relationships are protected by law from having to disclose
any information given to them by another individual in that relationship.
Most professional associations have ethical guidelines regarding the confidentiality
of communications between members and their clients. These guidelines
form a very important part of the professional relationship. However,
they do not necessarily provide protection from disclosure in court. The
laws regarding the relationship between other professionals and their
clients, such as clergy and their parishioners, doctors and their patients,
vary across the country. These professionals may be called upon to testify
in court. Communications between a lawyer and a client have special protection
that almost always forbids a lawyer from disclosing communications with
a client, including protecting the lawyer from having to testify in court
about information provided by a client.
Consent Order
An order of the Court to which both parties agree.
Contempt of Court
A willful disobedience of a court order punishable by fine or imprisonment
or both.
Contested Divorce
When one spouse does not agree to something sought in the Statement of
Claim for Divorce. It occurs if either party disputes the ground(s) for
divorce, or if the spouses are unable to agree on parenting or support
arrangements.
Corollary Relief
Under the terms of the Divorce Act, 1985, people involved in a divorce
proceeding can ask the Court to make supplementary orders pertaining to
financial support for a spouse or child, or for the custody of, or access
to, a child of the marriage.
Costs
Sums payable for legal services. When matters are contested in court,
a Judge has the discretion to order the losing party to pay a portion
of the successful party's legal costs.
Counterclaim
When a defendant sues a plaintiff for specified relief after court action
has been initiated between the parties through the filing of a statement
of claim.
Cross-Examination
The examination of a witness upon his or her Affidavit prior to a court
application or during a trial, hearing or deposition. The cross-examination
is performed by the opposing party.
Cruelty
The intentional and malicious infliction of physical and/or mental suffering.
Conduct by one spouse that makes the continuation of cohabitation intolerable
for the other spouse. Mental or physical cruelty can establish grounds
for divorce.
Custody
Control over a child given to an adult by the Court. This control includes
the responsibility to make decisions regarding education, religion and
health care.
Defendant
The individual that is sued in a lawsuit. The lawsuit is initiated by
the Plaintiff when a Statement of Claim is filed.
Demand of Notice
A document that may be filed by a defendant when the defendant does not
contest anything sought by the plaintiff in the Statement of Claim but
wishes to receive notice of any further proceedings.
Dependant
A person who relies on someone else for financial support. In the context
of family law, this may include a spouse or child.
Desk Divorce
An uncontested divorce where documents are submitted to the Justice, but
no court appearance is required by either party or legal counsel.
Disbursements
Out-of-pocket expenses incurred in a family law matter, such as the cost
of filing a document or process server or courier charges.
Disclosure
The production of certain documents to the opposing party. In a typical
divorce action, parties exchange certain basic information, such as the
financial documents referenced in a notice to disclose.
Discovery
A pre-trial procedure or a step in legal proceedings where lawyers get
to ask the opposing client, under oath, questions about anything that
touches on a matter in issue. The process is conducted in the presence
of a court reporter and a transcript of all questions and answers gets
prepared. Its purpose is to obtain facts and information about the case
of the opposing party in order to assist the lawyer in preparing for trial.
Also known as examination for discovery.
Dispute Resolution Officer (DRO)
An individual who volunteers his or her time to assist in resolving family
law disputes. This term also refers to the program where parties attend
one hour of mediation arranged through the Court of Queen’s Bench.
The program must be attended prior to a justice hearing a child support
application, unless an exemption is obtained.
Dissolution of Marriage
A term synonymous with “divorce” and referring to the breakdown
of a marriage. Pursuant to the Divorce Act, grounds for dissolution of
the marriage or divorce are established if the spouses have been living
separate and apart for at least one year immediately preceding the determination
of the divorce, or a spouse has committed adultery or mental or physical
cruelty.
Divorce
The termination of the legal relationship of marriage.
Divorce and Property Contract
A written settlement agreement that sets out how the parties have resolved
their differences. It can deal with the division of property, custody,
access, support and any other matter. It is a form of domestic contract.
To be legally binding, it must be executed with a witness. Both parties
must also receive independent legal advice about its contents.
Divorce Certificate
The actual piece of paper that officially describes the termination of
the marriage. It is needed as proof of the divorce in order to successfully
apply for a marriage license.
Domestic Special
A family law court time where an application can be heard and an interim
order granted. These are held at 2:00 p.m. most Tuesdays, Thursdays and
Fridays.
Domestic Violence
The intent of one spouse to intimidate, either by threat or use of physical
force, the other's person or property. The purpose of the assault is to
control behavior through the inducement of fear.
Dower Rights
A life-estate that a spouse is, by law, entitled to claim on a matrimonial
home upon the death of the other spouse.
Examination for Discovery
See discovery.
Extraordinary Expenses
Certain special expenses for a child may have to be paid over and above
the base amount of child support. Extraordinary expenses may include the
following:
- child care expenses;
- medical and dental insurance premiums attributable to the child;
- health-related expenses that exceed insurance reimbursement by at least
$100 annually;
- extraordinary expenses for primary or secondary school education or
programs;
- extraordinary expenses for post-secondary education; and
- extraordinary expenses for extracurricular activities.
Special or extraordinary expenses are evaluated by taking into account
the necessity of the expense in relation to the child’s
best interests and the reasonableness of the expense in relation to
the means of the parents and those of the child and to the family’s
spending pattern prior to the separation.
Child Support Guidelines
Federal Child Support Guidelines
Federal government established guidelines
that determine how child support is calculated.
Child Support Guidelines
Fees and Disbursements
The costs associated with a file. These are relayed to a client in a detailed
monthly statement. The fee is for the lawyer's time, which is calculated
by multiplying the hourly rate by the number of hours worked on the case.
Disbursements are out-of-pocket expenses.
Final Order
An order that is intended to last indefinitely. Unlike an interim order
it requires a change of circumstances and a specific application to be
varied.
Four Way Settlements Meeting
A meeting between both parties and their legal counsel for the purpose
of negotiating, facilitating settlement or narrowing issues.
Garnishee
A legal procedure that allows for the seizure of money owing to a person
who has not paid a court-ordered debt. The Court may order the debtor's
bank, employer, or anyone else who may owe money to the debtor, to pay
the money into court to help pay the debt.
Grounds for Divorce
The only ground for divorce in Canada is the breakdown of a marriage,
which can by established if the spouses have been living separate and
apart for at least one year immediately preceding the determination of
the divorce, or a spouse has committed adultery or has treated the spouse
with mental or physical cruelty.
Guardianship
A legal arrangement under which one person (a guardian) has the legal
right and duty to care for another and his or her property. Guardianship
is established because of the ward’s inability to legally act on
his or her own behalf because of minority, or mental or physical incapacity.
Guardianship status is automatically bestowed on the mother of a child.
Guardianship status is automatically bestowed on the father of a child
only in the event that the parents are legally married or they resided
together for one consecutive year immediately preceding the birth of their
child.
Guideline Income
Refers to a party’s total income or gross annual income. Guideline
income is used to determine the amount of child support payable pursuant
to the Federal
Child Support Guidelines. The Court has the ability to look at a pattern
of income and, under certain circumstances, it may impute income.
Child Support Guidelines
In loco parentis
To stand in the place of a parent. “Loco parentis” exists
when a person undertakes care and control of another.
Interest-Based Negotiation
The act of settling or arranging the terms and conditions of an agreement
based on the values and goals of each party, not their positions.
Interim Orders
A temporary order that is meant to last until a subsequent hearing of
the matter. There may be a considerable period of time between the initial
filing of a divorce application and the date on which a Court is able
to grant a final order for divorce and related support, custody or access
orders. On request, a Court can make a temporary order for the interim
period; this would be appropriate, for example, to stabilize custody or
access arrangements, or to provide financial support for a spouse or child
pending trial or other disposition of the matter.
Joint Custody
When parents share responsibility for making decisions that affect their
children. This does not refer to the parent the children actually live
with on a day-to-day basis, which is called residential care and control.
Joint custody requires a commitment on the part of both parents to co-operate
for the benefit of the children. Joint custody does not eliminate the
obligations of both parents to provide financial support for the children.
Judgment
The final decision by the Court on any issues put to it during a trial.
The formal piece of paper that describes which party has been successful
or not and on which issues.
Judicial Dispute Resolution (JDR)
A method of resolving a dispute that involves a meeting between the opposing
parties, their counsel and a judge who facilitates a discussion of the
issues and attempts to resolve the dispute.
Judicial Separation
A separation of man and wife by the decree of a Court.
Jurisdiction
The power and authority of a Court to hear and determine a judicial proceeding;
and power to render a particular judgment in question.
Litigation
Resolving a dispute by using the Courts and the adversarial process.
Maintenance
Financial support for a child or a former spouse or partner.
Maintenance
Enforcement Program (MEP)
The government agency that can facilitate the collection of support or
maintenance. In order for support payments to go through MEP, an order
of a court regarding support or maintenance must be registered with them.
Maintenance
Enforcement Program
Marriage
Currently this is the voluntary union for life of one man and one woman
to the exclusion of all others. In Canada, marriage involves a religious
or civil ceremony where the marriage takes place. Marriage creates the
legal status of husband and wife and the legal obligations arising from
that status. The law in this area may change in the near future to allow
same-sex marriages.
Marriage Breakdown
This is the sole ground for legally ending a marriage under the terms
of the Divorce Act, 1985. Marriage breakdown can be established in three
ways:
- through evidence that one spouse committed adultery;
- through evidence that one spouse committed physical or mental cruelty;
or
- that the spouses intentionally lived separate and apart for at least
one year.
Marriage Contract
A written agreement between a husband and wife outlining the spouses'
responsibilities and obligations. Generally a marriage contract deals
with the ownership and division of property in the event of a marriage
breakdown but may also refer to spousal support. In order to be legally
binding it must be executed with legal counsel and each party must receive
independent legal advice.
Matrimonial Home
Where the family or legally married couple has resided.
Mediation/Arbitration
A hybrid process beginning with mediation
which may evolve into arbitration
if the parties are unable to reach an agreement through mediation. The
parties agree to be bound by the decision of the arbitrator who originally
acted as the mediator.
Mediator
The individual who facilitates a discussion between parties to resolve
a dispute.
Mental Cruelty
A course of conduct on the part of one
spouse or partner toward the other, which can endanger the mental and
physical health and efficiency of the other to such an extent as to make
the relationship intolerable.
Minutes of Settlement
A method of settling a case by writing out the agreed-upon terms in the
form of a binding agreement or contract. Minutes of Settlement can deal
with the division of property, parenting, support and any other matters
between the parties. In order to be legally binding it must be executed
with legal counsel and each party must receive independent legal advice
about its contents.
Mobility
Typically refers to the legal ability of a parent to move with a child
to another city, province, or country.
Motion A request to a Court for a particular order pending
trial, such as an interim custody or support, filed with an Affidavit.
Also known as notice of motion.
Negotiation
A process in which two or more parties discuss their needs and interests
in order to resolve a conflict.
Note in Default
When a defendant fails to file a statement of defense or demand of notice
in response to a statement of claim, then the plaintiff is able to proceed
with his/her lawsuit without further involvement of the defendant. Prior
to the plaintiff proceeding in the absence of the defendant, the plaintiff
must note the defendant in default. A defendant may not be noted in default
without allowing the defendant at least 15 days to file a reply after
being served with a statement of claim, or without providing the defendant
with prior written reasonable notice.
Notice of Motion
A legal document that sets a court date for specified issues to be heard.
Notice to Disclose
A legal document that sets out what financial information must be disclosed
to the opposing party.
Order
A Court's decision on a matter that it was asked to resolve.
Originating Notice of Motion
A legal document that initiates a lawsuit and sets a court date for the
specified issues to be heard.
Parenting Plan
A written document setting out the parent’s agreement as to how
they wish to raise their children after separation or divorce. The parenting
plan may contain details about schedules, decision-making, philosophy,
and any other matters important to the parents.
Parens Patriae
Literally meaning “parent of the country,” it refers traditionally
to the role of the state as sovereign and guardian of persons under legal
disability, such as juveniles. It can refer to a child custody case where
the state acts to protect the interests of a child. It also commonly refers
to the Court’s inherent jurisdiction to govern or make decisions
regarding children.
Parties
The individuals involved in a legal dispute.
Pension
A fixed sum paid regularly to a person or surviving dependant following
his or her retirement. There are both public (Canada Pension Plan) and
private (from one's own employer) pensions. A pension, even if it is not
yet being paid at the time of marriage breakdown, is property that must
be divided.
Plaintiff
The individual who files a statement of claim initiating a lawsuit against
the opposing party or defendant.
Pleadings
The written description of each person's claims in a lawsuit, which must
be prepared in accordance with the Province's Rules of Practice. A statement
of claim, statement of defense, demand of notice and counterclaim constitute
pleadings.
Pre-Nuptial Agreement
A written contract signed by a couple who are intending to marry. It typically
provides for ownership and division of property, but can also deal with
issues of support. In order to be legally binding it must be executed
with legal counsel and each party must receive independent legal advice
about its terms.
Procedure
The technical rules that lawyers must follow to get a case through the
civil justice system. They are contained in the Province's Rules of Court.
Reconciliation
When a separated couple gets back together.
Residential Care and Control
Refers to where a child resides on a day-to-day basis.
Respondent
A party in a litigation proceeding who opposes some relief sought by the
other party and provides a response to the opposing party’s application.
Restraining Order
An Order that prohibits contact between two individuals and in some cases,
their children. It can be a blanket prohibition or it can provide for
specific contact at specific times and under specific circumstances.
Retainer
The contract by which you hire a lawyer to take your case. It can also
refer to a retainer fee, which is the sum of money you give to the lawyer
up front that is ultimately applied to fees and disbursements.
Same-Sex Union
A couple of the same gender cohabiting in a marriage-like relationship.
Same-sex couples may want to enter into a cohabitation agreement. In the
event of a breakdown of the relationship, same-sex couples may execute
a separation agreement or minutes of settlement.
Section 7 Expenses
Certain special expenses for a child may have to be paid over and above
the base amount of child support. Extraordinary expenses may include the
following:
- child care expenses;
- medical and dental insurance premiums attributable to the child;
- health-related expenses that exceed insurance reimbursement by at least
$100 annually;
- extraordinary expenses for primary or secondary school education or
programs;
- extraordinary expenses for post-secondary education; and
- extraordinary expenses for extracurricular activities.
Special or extraordinary expenses are evaluated by taking into account
the necessity of the expense in relation to the child’s
best interests and the reasonableness of the expense in relation to
the means of the parents and those of the child and to the family’s
spending pattern prior to the separation. See also Extraordinary
Expenses.
Child Support Guidelines
Separate/Separation
To cease living together as a couple. To be separated there must be an
intention not to live together again.
Separate and Apart
When a former couple resides independently of one another. Under certain
circumstances it is possible for individuals to live separate and apart
in the same residence. The ground for many divorces is that there has
been a breakdown of the marriage as established by the spouses having
lived separate and apart for at least one year immediately preceding the
determination of the divorce proceeding.
Separation Agreement
A contract signed by the parties to settle their differences. It can deal
with property, custody, access, support and any other matter. It is a
form of domestic contract.
Shared Parenting
When both parents spend an equal or roughly equal amount of time living
with the children.
Sine Die
Typically refers to an adjournment of a court application that is put
over without assigning a day for a further hearing. This can refer to
a final adjournment.
Solicitor/Client Costs
The actual expenses incurred between a lawyer and his/her client.
Solicitor/Client Privilege
People in certain relationships are protected by law from having to give
any evidence to third parties. Communications between a lawyer and a client
have special protection that almost always forbids a lawyer from disclosing
communications with a client, including protecting them from having to
testify in court about information exchanged between them. Although most
professional associations have ethical guidelines regarding the confidentiality
of communications between members and their clients, they do not necessarily
provide protection from disclosure in court. The laws regarding the relationship
between other professionals and their clients, such as clergy and their
parishioners, doctors and their patients, vary across the country. These
professionals may be called upon to testify in court.
Spousal Support
Payment from one spouse to the other. The money can be paid either in
a lump sum or periodically for a set period of time or indefinitely.
Summary Trial
A judicial examination and determination of simple issues between parties
to an action, whether they be issues of law or fact, before a Court that
has jurisdiction, where all or most of the evidence can be presented to
the Judge through affidavits.
Statement of Claim
The legal document that commences legal proceedings against another party.
It sets out the relief sought by the party initiating the lawsuit and
it gets filed in court, initiating a lawsuit. The individual who files
a statement of claim is known as the plaintiff.
Statement of Claim for Divorce and Division of Matrimonial Property
The formal document by which one person asks a Court to dissolve his or
her marriage to another, for corollary relief and for a division of all
the property owned by both.
Statement of Defense
The legal document that gets filed in court whenever the individual being
sued disputes all or part of the relief sought in a statement of claim.
It is filed in response to a statement of claim. The individual that files
a Statement of Defense is referred to as the defendant. A Statement of
Defense can be combined with a counterclaim.
Stay of Enforcement
The stopping or suspending of the portion of the proceeding that relates
to the carrying out of a command.
Table Support
The base amount of support payable pursuant to the Federal
Child Support Guidelines.
Child Support Guidelines
Trial
A judicial examination and determination of issues between parties to
an action, whether they be issues of law or fact, before a Court that
has jurisdiction. A trial involves opening and closing arguments given
by legal counsel and witnesses who testify under oath in open court to
provide their viva voce evidence.
Uncontested Divorce
When neither spouse disputes the grounds for divorce and when they are
able to reach an agreement regarding childcare and financial arrangements.
To obtain an uncontested divorce it is possible to ask a Justice to grant
a divorce without either party or legal counsel appearing in court. This
is referred to as a desk divorce.
Variation
If the circumstances that justified making a Corollary Relief Order, or
other Order relating to children or financial support in the first place
have materially changed, an application may be made for a change to the
order. A person affected by the order may ask a Judge to alter the order
to make it fit the new circumstances.
Venue
The particular geographical area in which a Court with jurisdiction may
hear and determine a case. Venue deals with the location of a lawsuit;
that is, it deals with the question of which court or courts may hear
the specific matter in issue.
Viva Voce Evidence Live testimony.
This refers to a witness giving oral evidence as opposed to evidence set
out in affidavits or dispositions.
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