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Family Law Terms

Glossary of Family Law Terminology

Please feel free to click on the letter to which the term begins with to be transported to that section.

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z


Access

The opportunity to visit with a child. Under the terms of the Divorce Act 1985, a spouse exercising access rights is also entitled to information about the child’s health, welfare and education, unless the Court orders otherwise. The Family Law Act has similar terms.

Adjournment

When a matter that is scheduled to be heard in Court 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

Adultery normally requires 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.  At one time, sexual intercourse by a husband or wife with someone of the same sex did not constitute adultery; however, recent case law holds that this is adulterous conduct.

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 Judge 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 commissioned by a qualified person, usually a lawyer, and filed in support of a Court application.

Alimony

An expression that previously described spousal support. Now that you know what it is, don’t use it. Call it spousal support.

Alternative Dispute Resolution

Refers to different ways in which disagreements can be resolved between parties other than through litigation or the adversarial process. Some of the alternative dispute resolution processes are Judicial Dispute Resolution (“JDR”), mediation, collaborative law, arbitration and negotiation.

Appeal

In certain limited circumstances a person affected by a Judge’s decision can ask a higher level of Court to review the decision and determine if the Judge 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 limitations for this type of review.

Applicant

A party in a litigation action who brings an issue or issues before a Judge for determination.

Application

A Court proceeding starts with the filing of certain documents with the Court clerks and the service of copies of these documents on other persons affected. Details of the material to be included in this application, the document format and the filing fees are determined by rules governing the Court procedure.

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.

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.

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“Best Interest of the Child”

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.

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Case Management

Process in which the same Judge is appointed to assist with all interim,  procedural (and sometimes legal) matters in an ongoing legal matter.  It is a process initially implemented to streamline the administration of justice and prevent on-going inefficiencies in the system.

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 payable pursuant to the Federal Child Support Guidelines.

Cohabitation Agreement

A written contract signed by a couple who are living together or are 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. 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.

Common-Law Spouse

Refers to parties who are not legally married but live together in a marriage-like relationship.

Confidentiality

People in certain relationships are protected by law from having to give any evidence in Court regarding communications between them. Communications between a lawyer and a client have this special protection. Most professional associations have ethical guidelines regarding the confidentiality of communications between members and their clients, which guidelines form a very important part of the professional relationship, however, they do not necessarily provide protection from disclosure in Court.

The laws regarding confidentiality of 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.

Consent Order

An Order of the Court to which both parties agree to the terms in advance.

Contempt of Court

A wilful disobedience of a Court Order punishable by fine, imprisonment or other remedies.

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,  the custody of or access to a child of the marriage.

Costs

When matters are contested in Court, a Judge has the discretion to order that the losing party 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/Questioning

The examination of a witness upon his or her Affidavit prior to a Court application or during a trial. The cross-examination is performed by the opposing party.

Cruelty

The intentional and malicious infliction of physical and/or mental suffering on a spouse. Conduct that makes the continuation of cohabitation intolerable for the other spouse. Mental or physical cruelty can establish grounds for divorce.

Custody

Responsibility for a child given to a parent. This includes the responsibility to make decisions regarding education, religion and health care for the child.

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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 either a spouse or a child.

Desk Divorce

An uncontested divorce where documents are submitted to the Judge, but no Court appearance is required by either party or legal counsel.

Disbursements

Out-of-pocket expenses incurred in a matter, such as the cost of filing a document, courier or photocopying charges or retaining a process server.

Disclosure

The provision of certain documents and information to the opposing party. In a typical divorce or family law action, parties exchange certain basic information, such as the financial documents referenced in a Notice to Disclose.

Dispute Resolution Officer (DRO)

A lawyer who volunteers his or her time, as a mediator, to assist in resolving family law disputes. Through the program, arranged through the Court of Queen’s Bench, this form of mediation must be attended prior to a Judge hearing a child support application, unless an exemption is obtained.  These mediations usually last for approximately one hour.

Dissipation

Although it can be difficult to prove, dissipation generally involves the act of one spouse squandering matrimonial assets. If proven, dissipation can be considered a factor leading to an unequal distribution of matrimonial property.

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, a spouse has committed adultery or is proven to have been mentally or physically cruel to the other spouse, such that their continued cohabitation becomes intolerable.

Divorce

The termination of the legal relationship of marriage.

Divorce Certificate

The document that officially describes the termination of a marriage. It is needed as proof of the divorce in order to successfully apply for a marriage license.

Divorce and Property Contract

A written settlement agreement that sets out how the parties have resolved their differences following the marital breakdown. It can deal with the division of property, custody, access, support and other matters. It must be executed with a witness and both parties must receive independent legal advice regarding its terms.

Docket

Provincial Court attendance regarding certain legal matters.

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.  They are normally scheduled for 1 or 2 hours but may also be booked for an entire day.

Domestic Violence

The intent of one spouse to intimidate the other spouse, either by threat or use of physical force. The purpose of the assault may be to control behavior through the inducement of fear.

Dower Rights

Dower rights arise out of an Alberta statute called the Dower Act which applies only to spouses. This legislation disallows a spouse from transferring title in certain property, in which that spouse has resided during the marriage, without the written consent of the other spouse.

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Extraordinary Expenses

Certain special expenses for a child may have to be paid over and above the base amount of child support. Extraordinary expenses (Section 7) may include the following:

  1. child care expenses;
  2. medical and dental insurance premiums attributable to the child;
  3. health-related expenses that exceed insurance reimbursement by at least $100 annually;
  4. extraordinary expenses for primary or secondary school education or programs;
  5. extraordinary expenses for post-secondary education; and
  6. 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.

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Federal Child Support Guidelines

Federal government established guidelines that determine how child support is calculated.

Fees and Disbursements

The costs incurred when you retain us. These are outlined in a detailed statement provided regularly to clients. The fee is for your 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 not interim. Interim Orders are effective until the end of the trial or other final settlement. The final Order is intended to last indefinitely or until changed by the Court.

Four Way Settlement Meeting

A meeting between both parties and their legal counsel for the purpose of negotiating, facilitating settlement or narrowing issues.

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Garnishee

A legal procedure that allows for the seizure of money owing by 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 other spouse with mental or physical cruelty, making continued cohabitation intolerable.

Guardianship

A legal arrangement under which one person (a guardian) has the legal right and duty to care for another. Often the guardian is a parent. Guardianship is established because of the ward’s inability to legally act on his or her own behalf due to being under the age of 18, or due to mental or physical incapacity. Guardianship status is automatically bestowed on the natural 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 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.

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In loco parentis

This is a Latin expression which means to stand in the place of a parent.

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 necessarily based on their legal rights and obligations.

Interim Orders

A temporary Court 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 grants a final Order for divorce and related support, custody or access provisions. On application, a Court may grant 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.

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Joint Custody

When parents share responsibility for making decisions that affect their children. This does not refer to the parent the child actually lives with on a day-to-day basis, which is called ‘primary day to day care and control’ or ‘residential care’. Joint custody requires a commitment on the part of both parents to co-operate for the benefit of the children.

Judgment

The final decision by a Court on issues placed before the Court during a trial.

Judicial Dispute Resolution (JDR)

A method of resolving a dispute which involves a meeting between the opposing parties, their legal counsel and a Judge who facilitates a discussion of the issues and attempts to resolve the dispute. This can be binding or non-binding. A non-binding JDR is a mediation with the Judge acting as the mediator.

Jurisdiction

The power and authority of a Court to hear and determine a particular judicial proceeding.

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Litigation

A process available to resolve disputes by using the Courts and the adversarial process.

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Maintenance

Financial support for a child, former spouse or partner.

Maintenance Enforcement Program (MEP)

The government agency that can facilitate the collection of Court ordered 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. This program can enforce both child and spousal support.

Marriage

Marriage creates the legal status of married spouses and the legal obligations arising from that status.

Marriage Breakdown

In Canada, 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 different ways:

  1. through evidence that one spouse committed adultery;
  2. through evidence that one spouse committed physical or mental cruelty such that continued cohabitation is intolerable, or
  3. 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’ rights, 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. Each party must receive independent legal advice.

Matrimonial Home

The home where the 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 has special training to facilitate discussions between parties in an attempt to resolve a dispute.

Mental Cruelty

A course of conduct on the part of one spouse or partner towards the other, which can endanger the mental and/or physical health of the other to such an extent as to make the continuation of their cohabitation intolerable./p>

Minutes of Settlement

A method of settling issues between parties by writing out the agreed-upon terms in the form of a binding agreement or contract. Minutes of Settlement can deal with settlement of issues such as the division of property, parenting and support. In order to be legally binding it must be executed with legal counsel. Each party must receive independent legal advice about its terms.

Mobility

Typically refers to the legal ability of a parent to move with a child to another city, province, or country.

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Negotiation

A process in which two or more parties discuss their needs and interests in order to resolve a difference.

Notice of Application

A legal document that sets a Court date for specified issues to be heard by the Court.

Notice to Disclose

A legal document that sets out what financial information must be provided to the opposing party.

Noting in Default

When a Defendant fails to file a Statement of Defence 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’s response, the Plaintiff must note the Defendant in default. A Defendant may not be noted in default without allowing the Defendant at least 20 days to file a response, after being served with a Statement of Claim.

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Order

A Court’s decision on a matter that it was asked to resolve.

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Parens Patriae

A Latin expression which refers to the role of the state as guardian of persons under legal disability, such as children. It can refer to a child custody case where the Court acts to protect the interests of a child. It commonly refers to the Court’s inherent jurisdiction to govern or make decisions regarding children.

Parenting Plan

A written document setting out the parents’ agreement as to how they agree to deal with their children’s living and decision-making arrangements, following separation or divorce. The parenting plan may contain details about schedules, decision-making, parenting philosophy, and any other matters important to the parents.

Pension

A fixed sum of money 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) pension plans. A pension, even if it is not yet being paid at the time of marriage breakdown, is property that is considered to be matrimonial property.

Plaintiff

The individual who files a Statement of Claim initiating a lawsuit against the opposing party, referred to as the Defendant in the lawsuit.

Pleadings

The written description of each person’s claim in a lawsuit, which must be prepared in accordance with the Province’s Rules of Court. A Statement of Claim, Statement of Defence, Demand of Notice and Counterclaim constitute the pleadings, in a lawsuit.

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.  Each party must receive independent legal advice about its terms.

Procedure

The technical rules that lawyers must follow to advance a case through the civil justice system. The rules are contained in the Province’s Rules of Court.

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Questioning

A pre-trial procedure or step in legal proceedings where lawyers ask the opposing party 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 is prepared. Its purpose is to obtain facts, information and admissions about the case of the opposing party in order to assist the lawyer in preparing for trial. The person being questioned swears an oath to tell the truth while being questioned.

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Residential Care and Control

Refers to which parent has the day-to-day care of a child.

Respondent

A party in a litigation proceeding who opposes the relief sought by the other party and who 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 Agreement

The contract by which you hire your lawyer to assist you with the issues you need resolved. A retainer fee is the sum of money you initially provide to your lawyer that is ultimately applied to fees and disbursements incurred by you.

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Same-Sex Union

A couple of the same gender cohabiting in a marriage or marriage-like relationship.

Section 7 Expenses

Certain special expenses for a child, defined in the Child Support Guidelines, which may have to be paid over and above the base amount of child support. These expenses may include the following:

  1. child care expenses;
  2. medical and dental insurance premiums attributable to the child;
  3. health-related expenses that exceed insurance reimbursement by at least $100 annually;
  4. extraordinary expenses for primary or secondary school education or programs;
  5. extraordinary expenses for post-secondary education; and
  6. 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.

Separate/Separation

To cease living together as a couple. To be separated there must be an intention not to live together again.

Separation Agreement

A contract signed by the parties to settle their differences. It can deal with property, custody, access, support and other matters. It is a form of contract.

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.

Shared Parenting

When both parents each spend an approximately equal amount of time living with the children.

Sine Die

A Latin expression which typically refers to an adjournment of a Court application that is put over without assigning a date for a further hearing.

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 of money by one spouse to the other, for the purpose of providing financial assistance. To have tax consequences, the terms of such arrangement must be written and be periodic payments. The money can be paid either in a lump sum or periodically for a set period of time or indefinitely.

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 is filed with the Court. The individual who files a Statement of Claim is known as the Plaintiff.

Statement of Claim for Divorce and Division of Matrimonial Property

The legal document that commences a lawsuit when one person asks a Court to dissolve his or her marriage, seeks corollary relief and asks for a division of all the property owned by both spouses.

Statement of Defence

The legal document that gets filed with the 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 who files a Statement of Defence is referred to as the Defendant. A Statement of Defence can be filed at the same time as a Counterclaim.

Stay of Enforcement

The stopping or suspending of that portion of proceedings and/or Court Orders that relate to the carrying out of a direction of the Court.

Summary Trial

A judicial examination and determination of certain 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 affidavit evidence.

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Table Support

The base amount of child support payable pursuant to the Federal Child Support Guidelines tables.

Trial

A judicial examination and determination, by a Court that has jurisdiction, of issues between parties to an action, whether they be issues of law or fact. A trial involves opening and closing arguments, given by legal counsel for each party to the action, and witnesses who provide evidence under oath to the Judge.

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Uncontested Divorce

When neither spouse disputes the grounds for divorce and they are able to reach an agreement regarding childcare and financial arrangements. To obtain an uncontested divorce it is possible to ask a Judge to grant a divorce without either party or legal counsel appearing in court. This is referred to as a desk divorce.

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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, then an application may be made for a change to the earlier Order. A person affected by the earlier Order may ask a Judge to vary the Order to make it suit 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 where a lawsuit may be commenced; that is, it deals with the question of which Court or Courts may hear the specific matter in issue.

Viva Voce Evidence

This refers to a witness giving evidence in person as opposed to evidence being provided in affidavits.

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