Frequently Asked Questions

Sometimes Lawyers use legal terms that you may not have heard of before.
Below are the glossary of some frequently used terms in family law.

Access : Refers to the right to spend time with the children on a regular basis and to receive information on the children's health, education, and well-being.

Act : A law passed by the provincial or federal legislature. Acts are also referred to as statutes or legislation.

Action : A legal proceeding in a civil case. A family law matter is a civil case.

Adjournment : Postponement of a court hearing to another date.

Adoption : The process in which a person, usually a child, becomes a legal member of a new family. Once an adoption is finalized, the person becomes the legal child of the adoptive parents and the parental rights of the biological parents are terminated.

Affidavit : A written statement or declaration of facts that are sworn or affirmed to be true by the person that made them.

Affidavit of Service : An affidavit certifying that a document has been served on a party.

Affirmation : A solemn declaration made by a person that they are telling the truth. You must make an Affirmation of truth when swearing an Affidavit for example. Lying in an affirmation is perjury, a criminal offence.

Alternative Dispute Resolution : Resolving conflict through means other than going to court. Examples of alternative dispute resolution include: arbitration, mediation, and collaborative family law. See references below.

Annulment : A declaration by the Court that a marriage is invalid. If a marriage is annulled, it is as if the marriage never occurred.

Appeal : A request made to a higher court, tribunal or authority for the review of a decision made in a court of a lower level.

Appeal Period : The time limit within which one can appeal.

Appellant : The name given to the party bringing an appeal application.

Applicant : A person who makes or starts a court application.

Application : The commencement of a proceeding in a court by way of filing the appropriate court form, in family law this is done by way of Statement of Claim or a Family Law Application (See below.)

Arbitration : A process wherein a neutral third party, selected by the disputing parties, makes a decision on the issue in dispute.

Arbitrator : The person who presides over the Arbitration and who makes a decision on an issue in dispute.

Arrears : Money that is owed to a party under a court order or agreement, but has not been paid. In family law dispute arrears may be for child support or spousal support.

Best Interests of the Child : This phrase will be heard very often in any family matter involving children and decisions to be made about them. It is often a reference to all the circumstances that must be taken into consideration by the court when making orders concerning children in child protection and family law cases. Such factors considered can include the child's needs, interests, views and preferences, and cultural and family connections.

Brief : A written statement summarizing the arguments of a case. It contains factual and legal arguments, as well as references to any legislation or cases that are being relied on to support those arguments. A brief will often be required for a hearing in court.

Burden of Proof : The degree of proof needed in a proceeding for a party to prove a disputed accusation or claim.

Case : A matter brought before the court for a decision.

Case Law : Judge-made law and legal decisions from previous cases that form precedents for future cases.

Cause of Action : A situation that may entitle one person to obtain from the court a remedy against another person.

Certificate of Divorce : A certificate issued by the court showing that a divorce has been granted under the Divorce Act dissolving the marriage of the persons specified in the certificate.

Child : For most legal purposes, a person under 18 years of age or, in some instances, a person under 16 years of age. A young person without the legal rights and responsibilities of an adult.

Child Abduction : The taking of a child contrary to a court order or without the permission of the parent who has legal custody of the child.

Child Abuse : Any action or series of actions that results in harm, potential for harm, or threat of harm to a child. Abuse can include physical harm, sexual molestation or exploitation, or emotional or psychological harm.

Child Support : The amount a parent pays, usually to the other parent, for the financial support of a child under a court order or agreement.

Child Support Guidelines : Rules and tables calculating the amount of child support that should be paid to the parent with whom the children reside. This is based on the payor's income, number of children, and the province or territory of residence of the payor.

Counterclaim : An action brought by the defendant in an existing action against the plaintiff, which is usually tried with the plaintiff's claim.

Cohabit : To live together in a spousal type relationship, whether within or outside of marriage.

Cohabitation Agreement : A contract between two parties who cohabit which addresses the issue of property division, support, inheritance etc., upon separation or death of one of the parties.

Collaborative Family Law : A process where the parties formally agree not to go to court and work with lawyers to negotiate a resolution of the issues in dispute through a series of meetings.

Commissioner for Oaths : A person authorized to administer oaths and affirmations and before whom affidavits, for example, may be made.

Common Law : This phrase has two different meanings in legal jargon. First, it could refer to legal customs and past decisions of judges (case law), as opposed to statute based law. Second, it is also the term that describes a relationship where two people live together as spouses but are not married.

Consent Order : An Order of the Court that is agreed to by all the parties involved in the action.

Constructive Trust : A type of trust that may arise where one person contributes to the value of another person's property. The court may find that it is a constructive trust if the property owner is unjustly enriched and the contributor receives no benefit. The effect of a constructive trust is that the owner of the property may have to hold the property in trust for the contributor.

Contempt of Court : Conduct that defies the authority or dignity of a court, including disobeying a court order.

Corollary Relief : The relief that a party request under a court proceeding. In a case under the Divorce Act, claims and orders for custody and access, child support and spousal support.

Costs : A money award made by a court or tribunal for expenses in bringing or defending a legal proceeding or a step in a proceeding. Costs may also be ordered against a party, in favour of the other, for bringing an unnecessary or frivolous action, failing to follow the court's directions or instructions before or during a step in the case.

Cross Examination : The examination of a witness by an opposing party to develop or test the truth of evidence given by the witness during direct examination.

Custody : The care and control of a thing or a person. In family law cases, this describes the arrangement made for the care of children when parents separate or children are found in need of protection. There are different types of child custody arrangements that can be made including:

Joint Custody : Whereby the children live primarily with one parent and the other parent spends regular time with the children. However, the parents make all the major decisions regarding the child, such as care, health and education, jointly.

Shared Custody : Where both parents are involved in decision-making about the children and share in their on-going care. The Child Support Guidelines provides that shared custody is where the children live at least 40% of the time with each parent.

Sole Custody : The children live with one parent, and that parent has the right and responsibility to make major decisions about the child's care, education, religious instruction and welfare. The other parent usually has access to the child.

Split Custody : This type of custody arrangement describes the situation where there is more than one child of the marriage/relationship and each parent has custody of one or more of those children.

Defendant : A person sued in a civil proceeding or accused in a criminal proceeding.

Dependant : A person who relies on another for support, this could be a minor child or an adult who is incapable of providing for themselves, for example. A person whom another has an obligation to support.

Deponent : A person making a statement under oath or affirmation, such as in an affidavit.

Disclosure : Making information and documents known and available to a party in a proceeding. There are disclosure requirements placed on parties by law or court rules. In family law, this refers to the mutual disclosure of financial information by the parties.

Discovery : There are compulsory discovery rules by which parties to civil actions must reveal documents and information relevant to the case.

Division of Property : In family law cases, this refers the division of assets and liabilities between parties after separation or death. For married parties, property is divided by equalizing the net family property of the parties.

Divorce : The legal ending of a marriage by a court order.

Divorce Act : Federal statute that governs divorce in Canada, as well as custody, access, and support in divorce cases.

Equalization Payment : A reference to the payment from one married spouse to the other to ensure that both parties receive an equal share of the net family property they accumulated during their marriage.

Evidence : Statements, information, and things that are used to support, prove or disprove an alleged fact. There are many different forms of evidence, including:

Admissible Evidence : Evidence that is relevant and acceptable to the Court.

Character Evidence : Evidence that addresses the kind of person that someone is.

Circumstantial Evidence : Evidence which creates an inference that a particular fact exists.

Corroborative Evidence : Evidence that strengthens and confirms other evidence.

Demonstrative Evidence : Physical evidence that can be seen and inspected.

Derivative Evidence : Evidence discovered by using illegally obtained evidence. This evidence may be found to be inadmissible.

Expert Evidence : Opinion evidence given by a person whom the court finds to be qualified to act as an expert in the field to which they have provided the opinion.

Hearsay Evidence : Evidence based on what someone else has told the witness. "Second-hand" evidence. Hearsay evidence is often not admissible in court.

Viva Voce Evidence : Evidence that is given orally, as opposed to written evidence.

Ex Parte : This is a latin term which means ‘made in the absence of the opposing party’. In certain circumstances, applications or motions brought by a party may be heard without notice to the other party.

Examination : The questioning of a witness under oath or affirmation.

Direct Examination : The questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify. For example, your lawyer questioning you in court.

Examination for Discovery : In civil proceedings, a process by which the parties to an action question one another, or another person, under oath or affirmation on the facts and issues. A record is produced of the questions and answers given. The term "questioning" is used in family law cases. This process is often carried out in a lawyer’s office and in the presence of a court reporter.

Excluded Property : In family law cases, the property that is excluded from the calculation of a married spouse's net family property. For example, an inheritance to one spouse may not be considered joint matrimonial property.

Exclusive Possession of the Matrimonial Home : A court order that gives one party the right to live in or use the family home, to the exclusion of the other.

Exhibit : A document or materials or an object admitted as evidence in court. Exhibits are often attached to Affidavit’s to support statements made therein.

Expert : A person who has developed skill and knowledge on a subject and is accepted by a court as being able to form opinions and provide reports on evidence presented.

Extraordinary Expenses : Expenses for children as are listed in section7 of the Child Support Guidelines to which both parents will generally contribute in proportion to their respective incomes, in addition to the regular guideline amount of support. These additional expenses may also be referred to as special expenses.

Financial Statement : Forms that describe a person's income, expenses, property, debts and liabilities.

Imputed Income : When a Court finds that the amount of income a parent discloses is not accurate, the Court may attribute additional income to that person for purposes of calculating child support.

Injunction : A court order requiring someone to do something or to refrain from doing something.

Judgment : A judicial decision; the determination of a court; a court's sentence or decision on the major question in a proceeding.

Summary Judgment : In civil or family law matters, a motion for a final order without a trial on the basis that there is no genuine issue for trial because the evidence favoring one of the parties is overwhelming.

Jurisdiction : The legal authority of a court to hear a particular matter.

Separation Agreement : Agreement by two people, who cohabited and have separated, on their respective rights and obligations post-separation.

Mediation : A process where a neutral third party (mediator), selected by the disputing parties, assists parties to reach agreement on issues in dispute.

Mediator : A neutral third party who assists parties to resolve issues in dispute. Mediators are impartial and therefore do not take sides or make decisions for the parties, nor do they provide legal advice.

Minor : A person who is under the age of 18.

Minutes of Settlement : Document signed by the parties that sets out the terms of a settlement arrangement and may be filed with the court in order to obtain a consent order or, when required, an order approving of the settlement. Can also be referred to as a Separation Agreement or a Divorce and Property Contract.

Offer to Settle : A written document that is sent by one party to the other setting out the terms for which that party is willing to settle all or part of the case.

Order : A court's direction requiring a party to do something or refrain from doing something. There are many different forms of Order that a Court can grant, including:

Consent Order : An order made by the court based upon the agreement of the parties.

Divorce Order : Final order made by a court in a divorce case. On taking effect, a divorce order legally ends a marriage.

Final Order : An order that decides a case or claim on a final basis.

Interim or Interlocutory Order : An order that is valid for a specified period of time or until there is a final order. It does not finally dispose of the case or claim before the court or tribunal.

Restraining Order : In family law cases, an order restraining harassment that prohibits a person from molesting, annoying, threatening, harassing or communicating with their spouse, their children, or a person having custody. An Order of this nature can also be granted to prevent one spouse from selling or depleting his or her property.

Support Order : In family law cases, an order that a person provide support for his or her dependants, which sets out the amount to be paid and the time during which the support must be paid.

Pre-Trial Conference : A meeting between a judge and the parties' lawyers (the parties may or may not be present), to consider the possibility of settling or simplifying the issues and determining questions of liability, what remedy a party seeks, and the estimated duration of the hearing.

Parenting Plan : A plan developed by parents which sets out their arrangements for the care of their children after separation. The plan can be informal or can be contained in a separation agreement or court order.

Particulars : The details of a claim. A court may order a party to provide additional "particulars" to: define any issues; prevent surprise; enable the parties to get ready for trial; and facilitate a hearing.

Party : A person by or against whom a legal action is brought. The people who make promises to each other in a contract.

Payor : A person who is required to pay money to another person under a court order or agreement.

Peace Officer : A police officer or other official who has sworn to uphold the law.

Perjury : An intentional lie given under oath or affirmation, either in person or in writing. It is a criminal offence.

Plaintiff : A person who commences an action.

Pleading : A statement in writing of material facts and law on which a party to a dispute relies in support of a claim or defence.

Precedent : A judicial decision or judgment that is cited as the authority for deciding a similar situation in the same manner.

Prima Facie : Latin term for "at first glance"; on the surface. It describes evidence or an argument that is sufficient to establish a fact or raise a presumption unless disproved or rebutted.

Pro Bono : Latin term for "for the public good". Legal services provided by a lawyer, free of charge, to individuals or to groups.

Proceeding : A legal process used to seek redress or a matter that is brought before the court.

Recipient : In family law cases, a person who is entitled to receive support under an order or agreement.

Relief : The remedy a party asks for in a proceeding.

Remedy : The award a party seeks in a proceeding to enforce a right or redress a wrong.

Reserved Judgment : When the judge postpones making a decision to research, study the law, or review the evidence presented during the proceeding.

Respondent : A person against whom a claim is made in an application, answer or appeal, or, a person against whom one issues a summons.

Resulting Trust : An action taken with the intent of creating a trust, where property is given from one person to another to control and act as trustee.

Rules of Court : The procedures which govern the proceedings in the court and which are to be followed by the parties.

Separation Agreement : Agreement by two people, who cohabited and have separated, on their respective rights and obligations.

Settlement Conference : A meeting between a judge and the parties or their lawyers, or all together, to identify any issues that can be settled or to identify any facts agreed upon and the evidence that will be relied on for the outstanding issues.

Solicitor-Client Privilege : The confidentiality of communications between a lawyer and client where they relate to seeking, forming, or giving legal advice.

Special Expenses : These are child support costs that are payable in additional to guideline support amounts.

Statement of Agreed Facts : A document given to a judge that lists facts that are agreed upon by parties so that they do not need to be proven by a party.

Statement of Claim : A commencement document to bring an action against another person. A statement by a plaintiff in a civil action which shows the facts relied on to support any claim against a defendant and the remedy or relief sought.

Statement of Defence : A statement made by a defendant in a civil proceeding to respond to a plaintiff's Statement of Claim.

Supervised Access : Access visits or the exchange of the child that take place in the presence of a third party, to ensure safety.

Support : Monetary assistance that a person provides for his or her dependant(s).

Spousal Support : Money paid by one spouse to another after separation to contribute to the other spouse's living expenses.

Summary Judgment : In civil or family law matters, a motion for a final order without a trial on the basis that there is no genuine issue for trial because the evidence favouring one of the parties is overwhelming.

Transcript : A record of oral testimony in a legal proceeding that was taken by a court reporter.

Trial : The hearing of a legal issue by a court. Trials tend to involve testimony from witnesses.

Trust : Legal rights that apply where one person holds and deals with property on behalf of or for the benefit of another person.

Trustee : A person who holds and manages assets in trust for someone else.

Uncontested : A case, or a step in a case, which is not defended by the responding party.

Undertaking : A promise to do something.

Undue Hardship : In family law cases, a situation where paying the required amount of child support would cause excessive financial difficulty for the payer.

Unjust Enrichment : A benefit obtained by one person at the expense of another, without a legal justification for it.

Valuation Date : In family law cases, the date at which a married spouse's property is valued, for the purpose of calculating net family property.

Variation : A change to a court order or other legal document, made on the authority of a court.

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