Family Law Terms

A-C

ACCESS

Visitation time with a child. Parties to an application for access may agree or courts may order general access or very specific access (i.e. every Wednesday from 6 p.m. to 8 p.m.). 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.

ACTION NUMBER

The file number given to a Statement of Claim when it is filed. All subsequent documents filed in the same matter will have the same action number.

ADOPTION

The legal process whereby a biological parent’s legal rights and obligations to a child are terminated and given to the adoptive parties. (See Links for more information)

ADULT INTERDEPENDENT RELATIONS ACT, 2002

Alberta legislation which defines the term Adult Independent partner, to be a person who has lived with another person in a relationship of interdependence:

a. for a continuous period of three years, or
b. of some permanence, if there is a child born to the relationship, or
c. by adoption, or if there is an adult interdependent partner agreement.

ADULTERY

Sexual intercourse by a husband or wife with someone of the opposite sex who is not his or her spouse. Although adultery is a ground for seeking a divorce, it is of little relevance to all other family law matters (i.e. custody, support, the division of property, etc.). The Province of British Columbia recently recognized same sex adultery as a ground for divorce.

ADVERSARIAL SYSTEM

A term for Canada’s court system where parties on opposing sides provide their respective arguments in support of their position and seek a decision from a court or other tribunal.

AFFIDAVIT

A written statement, sworn or affirmed by a Commissioner for Oaths or a Notary Public which provides the Court or other decision making power with the facts you intend to rely on. Ideally, the affidavit should be typed and divided into numbered paragraphs.

AFFIDAVIT OF EXECUTION

An affidavit in which one person swears they have witnessed another person who is known to them or whose identity they have verified, sign a document.

AFFIDAVIT OF SERVICE

An affidavit which describes where and how a document was served upon a person, corporation , partnership or other party to the dispute.

ALTERNATIVE DISPUTE RESOLUTION

Options for resolving disputes without litigation and outside of the Adversarial System. Some of the alternative dispute resolution methods are Judicial Dispute Resolution, mediation, collaborative law, arbitration and negotiation.

APPEAL

A review by a higher level court of a court order or judgment granted by a lower level court. The reviewing court may uphold or confirm the order, change it or send the matter back to the lower level court for reconsideration. There are specific rules which govern this type of review.

APPLICANT

A party in a litigated matter who files an application to a court for the determination of an issue or a number of issues.

APPLICATION

A written request, filed with a Court, for a Judge to grant an order, interim order or whatever form of relief a party is seeking, usually with evidence in the form of affidavits.

ARREARS

Unpaid sums of money for child or spousal support.

ARBITRATION

A binding process which provides an alternative to having a matter decided by a Court, in which parties argue their case before an arbitrator. The parties agree in advance, by contract, who the arbitrator will be, how the arbitrator’s fees will be paid and to be bound by the arbitrator’s decision.

ARBITRATOR

A person with special training, who is retained by parties, to make binding decisions about the issues they dispute, instead of a trial.

ASSESSMENT (PARENTING, CUSTODY OR PSYCHOLOGICAL ASSESSMENT)

An in depth study, conducted by a qualified professional, in accordance with professional requirements, which enables the professional to provide a written opinion regarding the type of parenting plan which would be in the best interest of the children who are the subject of the dispute.

BACKER

The back page of a document filed with the Court of King’s Bench.

“BEST INTEREST” TEST

The Canadian Courts must, when making decisions regarding parenting rights, including custody and access, focus on the question of “What is in the best interest of the child?” rather than what may be in the best interests of either parent in the dispute.

BILATERAL PARENTING ASSESSMENT

A parenting or custody assessment, involving both parents and the children.

BRIEF CONFLICT INTERVENTION

A program offered by the Alberta Government to assist parties to resolve disputes. Qualifying parties will receive up to ten hours with a professional who will assist them to resolve conflicts related to custody and access. (See Alberta Court Link for more information)

CASE MANAGEMENT

A procedure which may be ordered by a Judge or a Justice, or requested by the parties which directs that one Judge or Justice will be assigned to oversee or “manage” interim applications other procedural disputes, leading up to a trial.

CERTIFICATE OF DIVORCE

A document which certifies parties are finally divorced It is required by divorced people when they apply for a marriage license to remarry. It may be obtained from the Clerk of Court 30 days after a Divorce Judgment is granted.

CERTIFICATE OF LIS PENDENS

A certificate which may be filed on title to real property indicating that a law suit is pending which may have an impact upon the ownership of the property.

CHAMBERS (COURT)

A term commonly used to refer to the courtroom where interim applications will be heard by a Justice of the Court of King’s Bench, relying on affidavit evidence.

CHILD

The legal definition of a “child” is different for issues of child support than for issues of custody and access. For determining child support, an individual will still be considered a “child” if he or she is under 18 years of age, or is over 18 and remains dependent on his or her parents because of illness, disability or other reasons (which usually includes full time post-secondary attendance.)

For custody and access, an individual will no longer be considered a “child” if he or she is more than 18 years of age

CHILD SUPPORT

Tax free payments made by one parent to the other for the support of a child after the parents have separated or divorced. Child support is generally determined by reference to the payor parent’s income. The law governing the calculation of the amount of child support is found in the Federal Child Support Guidelines. See Link for the Federal Child Support Guidelines for more information.

CHILD, YOUTH AND FAMILY ENHANCEMENT ACT, 2000

Provincial legislation which sets forth the law regarding the guardianship, custody and access to children in need of protection.

CLERK OF THE COURT

A person who reviews files and processes documents submitted for filing at Court. Also a person who sits in a Courtroom to organize court files for the Judge and to record all matters stated before the Judge or Justice.

COHABITATION AGREEMENT

A written contract signed by a couple who are living together, who plan to live together or who plan to marry. It usually lists the assets and debts of the parties and how they would like to divide their assets if the relationship breaks down. It may include agreements obliging or waiving future financial support. In order to meet the requirements under the Matrimonial Property Act, it must be executed with legal counsel and each party must receive independent legal advice about its contents.

COLLABORATIVE FAMILY LAW

An alternative dispute resolution process in which parties and their lawyers agree to be bound to certain terms, for the purpose of assisting them to work together to negotiate a mutually acceptable settlement, without Court intervention.

COMMISSIONER FOR THE OATHS

A person who is authorized by the Province to take oaths.

COMMON-LAW RELATIONSHIPS

A marriage-like relationship which may trigger a variety of rights and obligations relating to support or property division. There is no comprehensive legislation in Alberta setting forth the laws governing the division of property from a common law relationship, instead, a body of law has developed in this area through a series of judgments from Alberta Courts and the Supreme Court of Canada. The Family Law Act lists the threshold requirements for applying for spousal support for unmarried parties.

CONFIDENTIAL COMMUNICATION

Communication which may not be disclosed to anyone else without the express permission of the client. Ordinarily, with limited exceptions, communication between a lawyer and a client is confidential.

CONSENT ORDERA

court order containing terms which have been agreed upon by both parties involved in a dispute and approved by the Court.

CONTEMPT OF COURT

The willful disobedience of a court order.

COROLLARY RELIEF

The term used in the Divorce Act, to collectively refer to custody, access, spousal support and child support orders.

COSTS

An amount of money a Judge may order a losing party to pay to a successful party. The actual amount of money awarded is at the discretion of the Judge who hears the application.

COUNTERCLAIM

A document filed by a Defendant, which sets out the relief he or she is seeking from a Plaintiff and the reasons why such relief is claimed.

COURT – COURT OF KING’S BENCH AND PROVINCIAL COURT

There are two courts in Alberta which hear family law disputes, these are the Court of King's Bench and the Provincial Court. Divorce applications, the division of property and declarations of parentage must be heard at the Court of King's Bench. Custody, access, child support matters may be heard in either court.

COURT ORDER

A document which lists matters ordered by a judge, is signed by a judge, filed at court and served to both parties or their counsel.

CROSS-EXAMINATION

A process in which a party who has sworn an Affidavit or otherwise provided sworn evidence may be placed under oath and asked questions by the opposing party’s counsel. A cross-examination may occur in a Courtroom during a trial or if a party has sworn an affidavit, opposing counsel may cross-examine in their office. If a party is cross-examined on their affidavit, a transcript of a cross-examination must be filed as evidence in the parties’ litigation.

CRUELTY

The intentional and malicious infliction of physical and/or mental suffering by one spouse upon another spouse. Cruelty is a ground upon which a divorce may be obtained. Conduct between spouses is generally of little or no relevance to other issues in family law (such as spousal support or the division of property), it may be relevant to custody and access if it there has also been cruelty to children.

CUSTODY

Custody refers to the arrangements for the care and upbringing of a child. The word ‘custody’ is usually used in conjunction with other terms to describe a parenting arrangement. The terms joint and sole modify custody to describe whether major decisions in the lives of children are made by both parents or just one. Where the parties have equal custody and access to the children, it is referred to as equal or shared parenting.

Here are some examples:

a. “Sole custody, day to day care and control to mother” means that the mother can make all major decisions in the life of the child and the child lives primarily with the mother.

b. “Joint custody, residential care and control to father” means that the father and the mother will make all major decisions in the life of the child together and the child lives primarily with the father.

c. “Joint custody and shared day to day care and control” means that the parents will make all major decisions in the life of the child together and the child will live approximately 50% of the time with each parent.Custody arrangements can be made by court order or by agreement between the parties. When parties litigate custody, a judge must determine custody by applying the “best interest of the child” test.

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D-F

DECLARATION OF PARENTAGE

To be declared a parent a person must apply to the Court of King's Bench. When children are born to parents who are married at the date of birth, the parents are presumed to be parents and do not need to make this application. The Family Law Act lists the circumstances in which unmarried fathers will be presumed to be parents. Parties who do not meet the presumptions of parentage must be declared to be parents in order for a Court to grant orders for such parents to have custody or access to their children or to require a parent to pay child support. A declaration of parentage is also required for parties who stand in loco parentis to a child to be granted custody or access rights, or to be required to pay child support.

DEFAULT JUDGMENT

An order which may be granted to a party if the other party has failed respond to notice of a lawsuit or an application after the expiry of the notice period.

DEFENDANT

The individual who is sued in a lawsuit or a divorce.

DEMAND OF NOTICE

A document that may be filed by a Defendant to a divorce. It advises the court that the Defendant is aware of the divorce, would like to receive copies of all documents filed in the divorce, but will not be disputing any of the relief sought in the Statement of Claim.

DEPENDANT

A person who relies on someone else for financial support.

DESK DIVORCE

A term used for finalizing an uncontested divorce by submitting documents to the court, such that the parties and /or their lawyers are not required to attend court and appear before a Justice.

DISBURSEMENTS

Expenses incurred by a party in a lawsuit, in addition to legal fees. These may include minor sums such as the cost of filing a document or courier charges, up to more significant amounts for other services used to support the litigation, such as expert witness fees, appraisals or the cost associated with completing a custody assessment.

DISCLOSURE

The exchange of documents which are needed as evidence for litigation. In family matters, this usually includes documents which substantiate the income, assets and liabilities of the parties.

DISCOVERY

A process in which a party to litigation is questioned about their case under oath. A transcript of the questions and answers is prepared. In contrast to a cross examination on affidavit, the transcript from a discovery is not necessarily filed with the court. The purpose of a discovery is to enable opposing counsel to obtain evidence and admissions, to request further information or documents and to assess the credibility of witnesses in preparation for trial.

DISMISSAL

A judge or justice’s refusal to grant an application.

DISPUTE RESOLUTION OFFICER (DRO)

A lawyer who provides one hour of free mediation services at the Court of King's Bench. Attendance before a DRO is generally required prior to commencing an application before a Justice regarding child support. Parties may also find it helpful to attend before a DRO to assist with the resolution of other issues, however, attendance for non-child support issues is optional. See Links for more information.

DISSOLUTION OF MARRIAGE

A term synonymous with “divorce.”

DIVISION OF PROPERTY

The Matrimonial Property Act of Alberta sets out the laws governing the division of property following the breakdown of a marriage, should the parties be unable to agree upon a division. It also allows parties to divide their property by a Divorce and Property Contract. There is no comprehensive legislation in Alberta setting forth the laws governing the division of property from a common law relationship, instead, a body of law has developed in this area through a series of judgments from Alberta Courts and the Supreme Court of Canada.

DIVORCE

The termination of the legal relationship of marriage.

DIVORCE ACT, 1985

Federal legislation which sets forth the terms under which a Divorce and Corollary Relief may be granted.

DIVORCE AND PROPERTY CONTRACT

A written contract which sets forth terms parties have agreed upon in relation to the division of property, and Corollary Relief. To meet the criteria set forth in the Matrimonial Property Act for dividing property on a final basis, a Divorce and Property Contract must be in writing and each party must have Independent Legal Advice. The completion of a Divorce and Property Contract does not mean that the parties will automatically be divorced. For a Divorce to be final, the parties must obtain a Divorce Judgment.

DIVORCE JUDGMENT

A court order which terminates a marriage. A Divorce Judgment must be obtained prior to obtaining a Certificate of Divorce.

DOMESTIC SPECIAL

A one hour or half day application which is made before a Justice of the Court of King's Bench regarding a family law matter. Usually evidence is presented in affidavit form. Counsel may present both written argument and oral argument.

DOWER RIGHTS

The Dower Act enables a spouse to occupy a matrimonial home for the duration of their life, in the event of the death of a spouse or divorce. These rights have largely become eclipsed by the Matrimonial Property Act. In practical terms, a married spouse must agree to waive these rights to enable their spouse to sell or borrow money against the matrimonial home.

EVIDENCE

Information presented to a Judge to prove or disprove facts and allegations in a case.

EX PARTE ORDER

A court order granted without notice having been given to the other party. This is only granted in rare circumstances, such as when the Plaintiff’s physical safety would be placed at risk if notice were given, or, in limited circumstances, when the other party cannot be located.

EXAMINATION FOR DISCOVERY

See Discovery.

EXCLUSIVE POSSESSION OF THE MATRIMONIAL HOME

An interim order allowing one party to live in the matrimonial home, until further order of the court. This does not impact ownership of the matrimonial home or the division of property.

EXPERT WITNESS

A witness who has been qualified by a Judge to use the special knowledge they have by virtue of their expertise to provide a Court with their opinions regarding a matter in issue. For example, a real estate appraiser may be qualified to give an opinion regarding the value of a house.

EXTRAORDINARY EXPENSE

Under Section 7 of the Federal Child Support Guidelines, a court may order, or parties may agree that a proportion of some or all of the following expenses will be paid by the payor of child support, in addition to the Table amount of child support:

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.

FAMILY LAW ACT, 2005

Provincial legislation which governs the determination of child support, spousal support, custody, guardianship and access in situations where the Divorce Act does not or is not applied.

FAMILY LAW INFORMATION CENTRE

A free service provided by the Government of Alberta to provide parents with information regarding child support and making an application to the Court of King's Bench. See Links for more information.

FEDERAL CHILD SUPPORT GUIDELINES (FCSG)

Federal law governing the calculation of child support.

FILING A DOCUMENT

The process of giving documents to the Clerk of the Court to be put into a file at court, Copies of the filed document are stamped by the Clerk of Court to prove the original has been filed. If the document initiates proceedings, there may be a fee charged for filing the document. Rules govern the format of documents which may be filed with the court.

FINAL ORDER

An order that is intended to conclude matters on an indefinite basis.

FOUR-WAY-SETTLEMENT MEETING

A meeting between opposing parties and their respective legal counsel for the purpose of negotiating, settling or narrowing issues that are in dispute.

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G-I

GARNISHEE

A legal procedure that allows for the seizure of money owing pursuant to a court order. The garnishee may result in money being seized from bank accounts, employment wages, or a variety of other sources. Once seized, the money is paid into court to pay the debt.

GRANDPARENT’S RIGHTS

Grandparents may apply to Court for custody or access to a child. In determining whether to grant grandparents access, a judge must apply the “best interest of the child” test.

GROUNDS FOR DIVORCE

To obtain a divorce in Canada, a spouse must satisfy a court that there has been a breakdown of the marriage for one of the following specific reasons (grounds):

1. the spouses having lived separate and apart for at least one year immediately preceding the determination of the divorce; or

2. the committing of adultery; or

3. the treatment of a spouse with mental or physical cruelty.

GUARDIANSHIP

A legal right and duty to care for a dependant. Guardianship status is automatically bestowed on the mother of a child. Guardianship status is automatically bestowed on the father of a child born to married parents or to fathers who meet the criteria listed in the Family Law Act. A person who does not automatically have guardianship may make an application to the court to become a guardian of a child or of a dependant adult.

GUIDELINE INCOME

The amount of income used to calculate child support payable pursuant to the Federal Child Support Guidelines. The FCSG provide discretion to deviate from the income reported to Revenue Canada if a court finds that amount of income is not the fairest determination of what is or should be available to pay child support.

INDEPENDENT LEGAL ADVICE

Advice that is provided by a lawyer with respect to certain agreements, documents, offers of settlement, prior to their client making a decision regarding the agreement, document or offer. The advice must be given separate and apart from the other party and from a lawyer who works in a different law firm than the lawyer for the other party. Certain contracts or agreements may require the consulted lawyer to provide a “Certificate of Independent Legal Advice” acknowledging that they have provided advice to that person.

IN LOCO PARENTIS

Latin, meaning ‘to stand in the place of a parent’. If, on the breakdown of a relationship, a non-biological, non-adoptive parent is found to have had a significant financial and parental role in the life of a child, that person may be able to seek a continuation of access to the child and may be required to pay child support for the child.

INTERIM ORDER

A court order granted at any time prior to a final order being made. Interim orders assist to stabilize contentious matters, such as custody, access and support pending trial or settlement.

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J-L

JOINT CUSTODY

Regardless of the day to day parenting arrangement, parents who have joint custody have either agreed or been ordered to ‘jointly’ share in the making of major decisions in the lives of their children. This is contrasted to a sole custodial arrangement, which permits the sole custodial parent to decide all matters in the lives of their children.

JUDGE AND JUSTICE

A Judge presides over a Provincial Court courtroom and a Justice presides over a Court of King's Bench courtroom.

JUDGMENT

A final order of the Court, usually the order made at the conclusion of a trial or as a consent order which contains the final agreement of the parties.

JUDICIAL DISPUTE RESOLUTION (JDR)

A form of alternative dispute resolution, in which a Justice or Judge meets with opposing parties and their counsel to facilitates an informal, without prejudice discussion/mediation, in an attempt to resolve the matters in dispute.

JUDICIAL SEPARATION

A separation of husband and wife by the decree of a Court.

JURISDICTION

The power and authority of a Court to hear and determine a dispute.

LEGAL FEES

The fees charged by a lawyer. Usually the cost per hour and other details regarding legal fees are set out in the lawyer’s retainer agreement.

LITIGATION

The steps taken to have a matter determined by a Court, once one party sues another party.

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M-O

MAINTENANCE

Financial support for a child or a former spouse or partner.

MAINTENANCE ENFORCEMENT PROGRAM (MEP)

A government program which collects child support and spousal support payments from payors and remits the funds collected to recipients of support, who have enrolled with MEP.

MARRIAGE

The voluntary union of one adult to another, which leads to legal rights and obligations.

MARRIAGE BREAKDOWN

The sole ground for legally ending a marriage under the Divorce Act, 1985. It can be established in three ways:

1. through evidence that one spouse committed adultery;

2. through evidence that one spouse committed physical or mental cruelty; or

3. that the spouses intentionally lived separate and apart for at least one year.

MARRIAGE CONTRACT

See either Divorce and Property Agreement or Prenuptial Agreement. A contract that a married couple will enter into to govern the management of their property during the marriage and in the event of a separation. A marriage contract may also address issues of spousal support, custody, access or other matters concerning the children of the marriage.

MATRIMONIAL HOME

The home in which a married couple resided.

MATRIMONIAL PROPERTY ACT, 2000

Alberta legislation which sets forth the law which governs the division of property owned or acquired by married persons who have a substantial connection to Alberta.

MEDIATION

A voluntary, non-binding process in which parties retain a qualified professional to assist them to resolve their dispute. Discussions which occur at a mediation will be “without prejudice” to either party. Some parties may qualify for subsidized mediation through the Provincial Court of Alberta (See Links for more information.)

MEDIATION/ARBITRATION

A hybrid process in which parties retain a professional who is qualified to mediate and arbitrate disputes to mediate their dispute, with a written agreement that the professional will arbitrate a binding, final decision, if the parties are not able to reach a mediated settlement.

MEDIATOR

The trained professional who facilitates a discussion between parties aimed at resolving their disputes.

MINUTES OF SETTLEMENT

A binding contract, which sets forth agreements between parties. In family law, it usually lists the agreements between parties regarding the division of property, custody, access, support and any other disputed matters. To meet the criteria set forth in the Matrimonial Property Act for dividing property on a final basis, Minutes of Settlement must be in writing and each party must have Independent Legal Advice. The completion of Minutes of Settlement does not mean that the parties will automatically be divorced. For a Divorce to be final, the parties must obtain a Divorce Judgment.

MOBILITY

Refers to the legal ability of a parent to move a child’s residence to another city, province, or country.

MORNING CHAMBERS

Courtrooms at the Court of King's Bench which hear interim applications. Evidence is presented in affidavits and a maximum of 20 minutes is allotted to for a Justice to hear argument and make a decision on each application. Custody matters are generally not heard in morning chambers.

MOTION

See Application and Notice of Motion

NEGOTIATION

The process of resolving a conflict through oral or written offers to settle.

NOTE IN DEFAULT

An application a Plaintiff may make, or the process of filing a document, both of which may be made to notify the Court that the Defendant’s notice period has expired and the Defendant has not taken any steps. Once a Defendant has been noted in default, a Plaintiff may seek a default judgment.

NOTICE OF MOTION

A document which is filed with the court and then served upon the opposing party to notify the opposing party that the Applicant seeks an order for particular relief, which will be heard in a Morning Chambers application or at a Domestic Special application on a particular date. The Notice of Motion is usually supported by an Affidavit and invites the opposing party to file a response if they oppose the relief sought.

NOTICE PERIOD

An amount of time an opposing party is given to respond to a Statement of Claim or Notice of Motion.

NOTICE TO DISCLOSE

A document which is filed with the court and then served on the opposing party to notify them that they must provide copies of the financial information requested on the document by a particular date.

NOTICE TO DISCLOSE/NOTICE OF MOTION

A Notice to Disclose which also notifies the opposing side that they must appear in morning chambers on a particular date, if the financial information has not been satisfactorily provided by the date indicated in the Notice to Disclose.

ORDER

A Court’s decision on a disputed matter. At the Court of King's Bench the parties must draft the decision into a legal document called an order. Once the drafting is acceptable to both parties, it is signed by counsel and then sent to the Court to be signed by the Justice who granted the Order and filed. At the Provincial Court, orders are often prepared for the parties following the granting of an order.

ORIGINATING NOTICE OF MOTION

A legal document that initiates certain types of lawsuits and sets a court date for the specified issues to be heard.

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P-R

PARALLEL PARENTING

A parenting arrangement which may be implemented in high conflict situations. A detailed parenting plan is created which enables the parents to have parenting responsibilities for the children with minimal or no communication with the other parent.

PARENS PATRIAE

A Latin term used to refer to the Court of King's Bench’s inherent jurisdiction to govern or make decisions regarding children.

PARENTAL ALIENATION

The act by one parent of directly or indirectly, consciously or unconsciously undermining a child’s relationship with the other parent.

PARENTING AFTER SEPARATION COURSE (PAS)

A mandatory course run by the Alberta government for separating parents (there are some exceptions). The purpose of the course is to review matters related to custody, access and child support, with the intention of helping parents to minimize the negative impact of their separation upon their children. See Links for more information.

PARENTING PLAN

A written document setting out the parents’ agreement as to how they wish to raise their children after separation or divorce. The parenting plan may contain details about schedules, decision-making, parenting philosophy, and any other matters important to the parents.

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 from an employer. A pension, even if it is not yet being paid at the time of marriage breakdown is property that may be subject to division.

PLAINTIFF

The individual who files a statement of claim initiating a lawsuit against the opposing party or defendant.

PLEADINGS

A collective term referring to particular documents filed with the court in a lawsuit. A statement of claim, statement of defence, demand of notice and counterclaim constitute pleadings.

PRAECIPE TO NOTE IN DEFAULT

A document filed to note an opposing party in default.

PRE- AND POST-NUPTIAL AGREEMENT

See Cohabitation Agreement and Marriage Agreement

PRESUMPTIONS OF PARENTAGE

The Family Law Act sets forth a list of situations in which a male person will be presumed to be the father of a child.

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 is served with an opposing party’s application.

RESTRAINING ORDER

An Order that prohibits an individual from contacting another individual and in some cases, their children. It can be a blanket prohibition or it can be in effect only during specific times and under specific circumstances. Upon the breach of a restraining order, the police may take the party in breach into custody.

RETAINER

The contract which you sign when 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.

RETROACTIVE APPLICATION FOR SUPPORT

An application for child or spousal support which seeks support payments or begin prior to the date the application was filed, or an adjustment to the amount of support which has previously been ordered, prior to the date the application was filed.

RULES OF COURT

A book of rules that governs the procedure that must be followed to carrying out a court application in the Court of King's Bench.

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S-U

SECTION 7 EXPENSES

See Extraordinary Expenses and Federal Child Support Guidelines

SEPARATE/SEPARATION

To cease living together as a couple, with the intention not to live together again. Under certain circumstances it is possible for individuals to be separated, although they live in the same residence.

SEPARATION AGREEMENT

See Marriage Agreement, Divorce and Property Contract and Minutes of Settlement

SERVE DOCUMENTS

Delivering documents which are filed at court to the opposing side during litigation. Strict rules govern how documents may be properly served.

SHARED PARENTING

When both parents spend an equal or close to equal amount of time living with the children.

SINE DIE

Latin meaning ‘for another day’. This term is usually used to refer to an adjournment of a court application, without assigning a specific date for a further hearing.

SOLICITOR/CLIENT COSTS

The legal fees incurred by a client during litigation. A Court has discretion to order an unsuccessful party to pay the successful party’s costs, in any amount. In very rare circumstances, a Court will order full payment of the successful party’s legal fees.

SOLICITOR/CLIENT PRIVILEGE

See Confidential Communication

SPOUSAL SUPPORT

Money paid, by order or agreement, by one spouse to the other, following the breakdown of the relationship, to assist a spouse to achieve self-sufficiency, to relieve economic hardship from the breakdown of the relationship and to apportion the economic consequences of raising children and other decisions made during the relationship. There are no legislated spousal support guidelines. The legislative authority to order spousal support is contained in the Divorce Act and the Family Law Act. Monthly spousal support payments are tax deductible to the payor and must be claimed as income by the recipient. Spousal support can be paid either in a lump sum or periodically for a set period of time or indefinitely. Lump sum spousal support is usually not tax deductible.

SPOUSE

A married person, or a person defined to be a spouse pursuant to the Adult Interdependent Relations Act.

STATEMENT OF CLAIM

A legal document which is filed at court to commence a law suit. A Statement of Claim sets out the relief sought by the party initiating the lawsuit and the grounds for the relief claimed. The individual who files a statement of claim is known as the plaintiff.

STATEMENT OF CLAIM FOR DIVORCE AND DIVISION OF MATRIMONIAL PROPERTY

A legal document which is filed at court to commence a divorce. It sets out as relief a divorce, corollary relief and the division of matrimonial property.

STATEMENT OF DEFENCE

The legal document which is filed at court when the individual being sued, the Defendant, disputes all or part of the relief sought in a Statement of Claim. A Statement of Defence sets out the disputed relief, the grounds for the dispute and may also make a counterclaim.

STAY OF ENFORCEMENT

An order suspending all or a part of a previous order.

STYLE OF CAUSE

The information listed on Court documents which identifies the names of the parties, the name of the document and the Court where the matter will be heard.

SUBSTITUTIONAL SERVICE ORDER

An Order which allows an Applicant to serve documents to a person other than the other party. It is granted in situations where the Applicant can satisfy a justice that efforts have been made to personally serve the opposing party, with no success.

SUMMARY TRIAL/JUDGMENT

An application to a Court to grant a Final Order without the need for a full trial.

SUPERVISED ACCESS

Visitation to a child which is monitored. The supervisor may be a family member or a paid professional.

TABLE SUPPORT

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

TRIAL

A lengthy process in which a Judge or Justice is asked to determine disputed matters, on a final basis, after hearing viva voce evidence (oral testimony) from the parties to the lawsuit or from other witnesses.

UNCONTESTED DIVORCE

See desk divorce.

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VARIATION APPLICATION OR ORDER

If the circumstances that justified making a Corollary Relief Order, or other Order relating to custody, access or support have materially changed, an application may be made for a change to some or all of the terms of that order.

VIVA VOCE EVIDENCE

Evidence which is given to a Court through a live witness speaking in a Courtroom.

WAIVER OF SPOUSAL SUPPORT

An agreement in which parties agree, on a final basis that they will not seek spousal support at any point in the future, no matter what their circumstances may be. Waivers of spousal support may be overturned and spousal support reinstated only in very rare circumstances.

WITH PREJUDICE

Communication which may be presented to a Court as evidence, at a future date.

WITHOUT PREJUDICE

Communication which may not be presented to a Court as evidence. Ordinarily communication made to negotiate a settlement and communication during mediation is made on a without prejudice basis. For certainty, the words ‘without prejudice’ often appear on letters between counsel on matters involving negotiation.

WITNESS

A person who gives oral evidence in a trial regarding matters in dispute.

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