Clicklaw Wikibooks - User contributions [en]

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209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Terminology&diff=1217 Terminology 2013-03-12T17:33:03Z

<p>209.17.147.129: </p> <hr /> <div>{{LSSbadge<br /> |resourcetype = more information on <br /> |link = [http://www.familylaw.lss.bc.ca/resources/definitions.php family law definitions]<br /> }}<br /> __NOGLOSSARY__<br /> __NOTOC__<br /> ==A==<br /> ;ab Initio:A Latin phrase meaning "from the beginning." A marriage which is unlawful is "void ab initio," as if it never happened.<br /> ;abduction:The taking of a person by force or fraud. In family law, also the taking of a child contrary to a court order or without the other parent's permission. In certain circumstances, this may be a criminal offence.<br /> ;abrogate:To rvoke or annul. One "abrogates" a contract, like a family agreement, by doing something expressly contrary to the agreement. One party's act of abrogation may not void the agreement, but will give the other party a cause of action.<br /> ;access:A parent's time with his or her children following the breakdown of the parents' relationship. Access usually refers to the visits of a child with the parent who doesn't have the child's primary residence. See "Custody," "Guardianship" and "Primary Residence."<br /> ;account:In law, a lawyer's bill to his or her client. Also, a statement of one person's view of events.<br /> ;act:A law passed by a government, also called "legislation" or a "statute." Also, the intentional doing of a thing.<br /> ;action:A law suit; a legal proceeding in which one party sues another for a remedy or specific relief. An action for divorce, for example, is a court proceeding in which the Claimant sues the Respondent for the relief of an order for the parties' divorce.<br /> ;address for service:The address at which a party must accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addreses for service may include postal addresses, fax numbers and email addresses.<br /> ;adoption:In family law, the act or process of taking another person's natural child as one's own. The child then becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "Natural Parent."<br /> ;Adoption Act:A provincial law dealing with entitlement to adopt and the adoption process.<br /> ;adoptive parent:A person who has formally assumed the status of parent to a child who is not his or her biological offspring. See "Adoption" and "Natural Parent."<br /> ;adultery:The act of a married person voluntarily engaging in sexual intercourse with a person other than his or her spouse; cheating; playing around; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act. See also "Collusion," "Condonation" and "Divorce, Grounds of."<br /> ;advance:In family law, this usually refers to one party obtaining a share of his or her portion of the family assets before those assets have been divided, whether following trial or a final settlement of the matter.<br /> ;Advisory Guidelines:See "Spousal Support Advisory Guidelines."<br /> ;advocate:A lawyer; sometimes a person other than a lawyer who presents and argues a case in court on behalf of a party to the proceeding. Also, to argue a debated position.<br /> ;affidavit:A legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally under oath. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit about the truth of its contents. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements orally before a judge at trial. See "Deponent" and "Witness."<br /> ;affirm:To promise that a statement is true. When someone "swears" to tell the truth, they are considered to be taking an oath on their faith in a god. Affirming is a substitute for taking an oath, and is most often employed where person making the statement is an atheist or under a religious proscription from making oaths. See "Affidavit," "Oath" and "Witness."<br /> ;age of majority:The age at which someone becomes a legal adult with the full capacity to act on their own, independent of their parents, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "Disability" and "Infant."<br /> ;agent:In law, someone acting on behalf of someone else, with that person's express permission and normally their express direction.<br /> ;alias:A name by which people know you other than your legal name. Aliases are not illegal in British Columbia.<br /> ;alienating:In family law, the actions or statements of one parent which tend to sever, damage or harm his or her child's relationship with or affections for the other parent.<br /> ;alimony:Spousal support; spousal maintenance. See "Spousal Support."<br /> ;allegation:An assertion that a certain set of facts is true, such as "on Monday, I had soup for lunch" or "Bob drives a blue Camaro." Also called an allegation of fact or a statement of fact.<br /> ;alternative:See "In the Alternative."<br /> ;alternative dispute resolution:A phrase referring to a family of processes intended to resolve disputes outside of the court system, including arbitration, mediation, negotiation and collaborative law. In family law, the purpose of ADR is to offer a less adversarial and less expensive way to resolve a dispute than having to go to court and have a judge resolve things.<br /> ;amend:To change or alter a pleading or document which has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "Amended List of Documents."<br /> ;amicus curiae:A Latin phrase meaning "friend of the court." Usually refers to a lawyer who does not act for any of the parties and assists or brings relevant information to the attention of the presiding judge.<br /> ;annulment:A declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occured. See "Ab Initio," "Declaration" and "Validity of Marriage."<br /> ;answer:A response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."<br /> ;appeal:An application to a higher court for a review of the decision of a lower court and, hopefully, the reversal of that decision. A decision of a judge of the Supreme Court of British Columbia can, for example, be appealed to the Court of Appeal for British Columbia for review.<br /> ;appellant:The party who brings an appeal of a lower court's decision. See also "Appeal" and "Respondent."<br /> ;applicant:A party to an action who brings an application to the court for certain relief. Usually refers to the party who has brought an interim application before the court. See also "Interim Application" and "Application Respondent."<br /> ;application:A request to the court that it make an order for certain relief, usually on an interim or temporary basis. See also "Interim Application," "Motion" and "Relief."<br /> ;application respondent:A party against whom an interim application has been brought. See also "Interim Application" and "Applicant."<br /> ;apportion:In family law, to divide equally, usually referring to the division of family assets between spouses. See also "Reapportion."<br /> ;appraisal:A professional estimate of the worth of certain property. In family law, this is sometimes required for the court to fix the value of assets such as an art collection or a house.<br /> ;apprehend:In law, to take; to seize. In family law, this term usually refers to the taking of a child out of the care of his or her parents by the child welfare authorities.<br /> ;arbitrator:A person selected by the parties to a dispute to resolve their dispute outside of court, who is given the authority to impose a decision on the parties.<br /> ;argument:In law, persuasion by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence about the facts of a case, or to a written brief of argument.<br /> ;arrears:Money which is unpaid but supposed to have been paid pursuant to an order or agreement. Usually refers to outstanding money owed for spousal support or child support.<br /> ;assent:Agreement, approval.<br /> ;assess:To determine the value or amount of something. A lawyer's bill may be "assessed" by a registrar to determine the actual amount the client should pay. See "Appraisal."<br /> ;assign:In law, to transfer an interest or right in something to someone else. People who go on welfare, for example, are required to assign their rights to apply for child support and spousal support to the provincial government.<br /> ;attest:To swear or affirm something to be true, usually in the context of oral evidence or affidavit evidence.<br /> <br /> ==B==<br /> <br /> ;bad faith:Intentionally misleading someone else, whether by doing or not doing something; acting in a manner contrary to one's actual intention; an intentional failure to act honestly and openly. Also known by the Latin phrase male fides.<br /> ;Bar:In law, refers to both the physical railing separating the public gallery in a courtroom from the portion where the judge and lawyers sit and to lawyers as a group.<br /> ;barrister and solicitor:A lawyer; a person licenced to practice law in a particular jurisdiction. In England "barristers" do trial work and "solicitors" draft legal documents. In Canada, lawyers are both barristers and solicitors.<br /> ;bastard:A child of unmarried parents; an illegitimate child. Bastards used to be at a certain legal disadvantage, however the law has changed so that such children are treated equally with children born of a marriage. Bastard children are, for example, equally entitled to child support and access with both parents as legitimate children are. (The appearance of this definition below that of "Barrister and Solicitor" is purely coincidental.)<br /> ;Bench:Refers to the court, judges as a group, and the place where a judge sits in a courtroom.<br /> ;beneficiary:The person for whose benefit a trustee holds a trust; the recipient or intended recipient of property given in a Will. See "Heir," "Trust" and "Will."<br /> ;bigamy:Being married to more than one person at the same time, whether the marriage ceremonies were held separately or at the same time. This is a criminal offence in Canada, unlike Utah. Bigamous marriages, subsequent to the first marriage, are void ab initio. See "Ab Initio" and “Validity of Marriage.”<br /> ;bill:In law, a lawyer's statement of account for services rendered to his or her client. Also, a piece of legislation presented to the legislature for its approval. See "Act" and "Lawyer's Fees."<br /> ;bill of costs:In British Columbia, an account prepared by a party who is awarded their costs of an action or application and presented to the other party for payment. A Bill of Costs is prepared according to a formula set out in the Supreme Court Family Rules.<br /> ;binding:In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "Contempt" and "Precedent."<br /> ;bona fide:A Latin phrase meaning "in good faith;" doing something honestly and openly, without intending to mislead, deceive or harm someone else.<br /> ;breach of contract:Acting or not acting in a manner contrary to the terms of an agreement. In family law, the breach of one party usually gives rise to a cause of action for the other party, but the breach is unlikely to allow the other party to treat the agreement as if it were cancelled or void. See "Abrogate."<br /> ;brief:In law, a written argument; a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief.<br /> ;burden of proof:The obligation of a party to prove his or her case; the onus of proof. The burden of proof usually lies on the party who makes a claim, although in certain circumstances, usually by operation of statute, this burden is reversed. In civil litigation, a party must prove his or her case on the balance of probabilities.<br /> ;business assets:In family law, assets owned either wholly or partly by one spouse relating to a company or corporation and not used for family purposes. Business assets are usually not subject to division between spouses, unlike family assets. See "Family Assets."<br /> <br /> ==C==<br /> ;calendar days:A method of calculating time under which the days for a legal deadline are counted as they appear in the calendar, including weekends and holidays. See "Clear Days."<br /> ;Canadian Charter of Rights and Freedoms:Also known as the Charter, the part of the Constitution Act, 1982 which sets out the fundamental rights and freedoms shared by all Canadians, including the freedoms of religion and expression and the rights to life and liberty. Neither the federal nor the provincial governments can pass laws or act in ways contrary to the Charter. Certain sections of the Charter, particularly the portions dealing with equality rights, have a special importance for family law. For example, the way that the provincial Family Relations Act treats unmarried and married couples differently for the purposes of dividing their assets may be contrary to the equality guarantees set out in the Charter.<br /> ;case:In law, a law suit/ an action/ a cause of action/ litigation. Also refers to historic decisions of the court. See "Action" and "Precedent."<br /> ;case at Bar:The case presently before the court/ the case being argued.<br /> ;cause:In law, a law suit, an action, a cause of action. Also, the wrongful act of another which gives rise to a claim for relief. See "Action."<br /> ;cause of action:A claim in law against a party based on particular facts/ the wrongful act of another which gives rise to a claim for relief. For example, one spouse's adultery gives rise to the other spouse's right to claim for a divorce/ the adulterous act is the other spouse's cause of action for the divorce claim.<br /> ;certificate of costs:A document endorsed by a Master or Registrar stating the amount owed as "costs" by one party to the other after a trial, usually issued following a hearing to "settle" the amount of the costs justly owed. A Certificate of Costs is equivalent to a judgment of the Supreme Court and can be used to enforce payment of the costs owed just like a judgment debt.<br /> ;certificate of fees:A document endorsed by a Master or Registrar stating the amount a client owes to his or her lawyer, issued following a hearing to "tax" a lawyer's bill and determine what portion of the lawyer's bill was reasonable and is properly owed to or refundable by that lawyer.<br /> ;certificate of Pending Litigation; CPL:A document filed in the Land Title and Survey Authority against the title of a piece of real property stating that the property is the subject of litigation and that ownership of the property may change as a result/ formerly called a lis pendens. In family law, a CPL is used to protect the interest of one party in a piece of property owned by the other party by notifying potential purchasers or mortgagees about the litigation and the posibility that the property might change hands. See also "Clear Title," "Encumbrance" and "Real Property."<br /> ;chattel:An item of personal property. Distinguished from "real property" in the sense that chattels can be picked up and taken from place to place, whereas of real property is immovable. See also "Real Property."<br /> ;child support:Money paid by one parent to the other to help defray a child's living expenses. Also known as maintenance and palimony.<br /> ;Child Support Guidelines:A federal regulation which sets out the amount of child support a parent must pay based on the parent's income and the number of children involved, and provides rules about the calculation of child support. The tables that set out the basic amount of support payable differ from province to province.<br /> ;circumstantial evidence:Evidence which doesn't prove a fact but allows a court to logically infer a fact/ indirect proof of a fact. For example, a fixed amount of money deposited every two weeks into someone's bank account may allow the court to infer that the person has a job even though there is no direct evidence of that person's employment.<br /> ;civil action:A non-criminal law suit. All family law actions are civil actions.<br /> ;Civil Marriage Act:A piece of federal legislation that expands the common law definition of spouse to include persons of the same gender.<br /> ;claim:The assertion of a legal right to something, whether to an order or to a thing/ the relief sought by one party against the other.<br /> ;claimant:The person who starts a legal action seeking an order for certain relief against another person, the Respondent. See “Action” and “Respondent.”<br /> ;clear days:A method of calculating time under which the days for an action to occur are counted by excluding the first day and the last day in the period. For example, a court order obtained on Monday that says that some can apply to vary the order on "two clear days' notice" means that the soonest the person could apply is Thursday. Monday, the day the order was obtained, is exluded. Tuesday is the first clear day/ Wednesday is the second and last clear day. Thursday is the first day after the end of the clear day period. See "Calendar Days."<br /> ;clear title:Ownership of property without any debt, liens or claims being registered against the property. For example, owning a piece of land without a mortgage or a CPL on the property, or owning a car without a car loan. See "Certificate of Pending Litigation."<br /> ;coercion:The use of force or intimidation, whether emotional or physical, to compel another person to do something/ interference with another person's freedom of choice. For example, saying "sign this separation agreement or you'll never see your children again."<br /> ;cohabitation:Living with another person in a "marriage-like relationship" while legally unmarried/ shacking up/ living in sin/ playing house. See also "Marriage-like Relationship" and "Spouse."<br /> ;collusion:An agreement to do something with another person towards a usually illegal goal. In family law, the court must satisfy itself that there has been no collusion between the parties as to a ground of divorce before a divorce order will be made. For example, spouses might collude to get a divorce by agreeing that would one them would have an affair in order to claim a divorce on the ground of adultery.<br /> ;common law:This phrase has a number of different meanings: 1) a legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts/ 2) the system of justice used in non-criminal cases in all provinces except Quebec/ and, 3) the legal status of an unmarried couple who have cohabited for longer than two years in a marriage-like relationship. See "Marriage-Like Relationship."<br /> ;competent:In law, having the capacity, ability or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of his or her evidence. A court which has jurisdictional competence is a court with the authority to deal with the issues in a case and authority over the parties to that case.<br /> ;compulsion:See "Coercion" and "Duress."<br /> ;conclusion of fact:A judge's decisions as to what the facts of a case are, based on the evidence he or she has heard and his or her evaluation of the credibility of the witnesses giving the evidence. See also "Evidence," "Question of Fact" and "Witness."<br /> ;conclusion of law:A judge's decision as to how the law, both statute law and common law, should be applied to the facts of a particular case. See also "Common Law," "Conclusion of Fact," "Question of Law" and "Legislation."<br /> ;concur:To agree.<br /> ;concurrent:Happening or existing at the same time. Two courts with concurrent jurisdiction, for example, have the jurisdiction to hear the same case and deal with the same issues.<br /> ;condonation:Forgiving the wrongful or harmful act of another. In family law, usually refers to the forgiving of an act of adultery or cruelty and the continuation of the parties' relationship as it had been before. For example, if one party forgives another's adultery and their relationship continues on, that party has condoned the other party's adulterous act. See also "Adultery," "Cruelty, Mental or Physical" and "Divorce, Grounds of."<br /> ;conjugal rights:A somewhat outdated idea involving each spouse’s entitlement to the benefits of the different aspects of married life from the other, including the comforts of living together, eating at the same table, sympathy, mutual confidence, sex, and so forth.<br /> ;connivance:Intentionally causing or permitting a wrongful act to obtain a goal. In family law, consipiring towards the adultery of the other spouse for the purpose of claiming adultery as a ground of divorce. A divorce will not be granted where connivance as to the ground of divorce relied on is found. See “Adultery,” “Collusion," "Condonation” and “Divorce, Grounds of.”<br /> ;consanguinity:Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity or adoption. See “Marriage” and “Validity of Marriage.”<br /> ;consent:Agreement/ making a choice of one’s own free will.<br /> ;consortium:The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other. See “Conjugal Rights.”<br /> ;conspiracy:The agreement of two or more people to perform an unlawful act or to do a lawful act by unlawful means. A conspirator is a party to a conspiracy. See “Lawful.”<br /> ;constitution:The rules which set out the political and legal organization of a state. The power and authority of the governments and the courts, as well as their limits, stem from the constitution. In Canada, there are two primary constitutional documents, the Constitution Act, 1867and the Constitution Act, 1982. TheCharter of Rights and Freedoms is Part 1 of the Constitution Act, 1982.<br /> ;construction:In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one parent “will have the children on Monday, Tuesday and Friday” but didn’t say anything about the other parent, the agreement would likely be "constructed" to mean that the other parent would have the children on the remaining days.<br /> ;constructive trust:In family law, the finding by a court that one of the parties to a relationship, whether married or unmarried, holds a portion of his or her assets for the benefit of the other party without an express agreement to that effect between the parties. For a court to make this finding, it must be satisfied that one party has been deprived of something (time, labour, money and so forth) to the unfair benefit of the other party with no legal reason for that deprivation. See “Resulting Trust” and “Trust.”<br /> ;contempt of court:Doing something or failing to do something which impairs the administration of justice or respect for the court’s authority. For example, bribing a witness, disobeying a court order or misleading the court. Contempt of court can be a civil offence as well as a criminal offence.<br /> ;contingency fees:An arrangement where a lawyer is paid by taking a percentage of the money awarded to his or her client by the court or a settlement. Contingency fee agreements are not allowed in family matters, although sometimes a lawyer will agree to be paid from the assets held by a party following the final resolution of an action, such as the proceeds of the sale of a family asset. See “Account,” “Lawyer’s Fees” and “Retainer.”<br /> ;continuance:The continued hearing of an application or trial following a partial hearing at an earlier date. See “Adjournment.”<br /> ;contract:An agreement by two or more people which gives them mutual obligations towards each other. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must generally be exchanged between the parties to the contract. See “Family Agreements” and “Separation Agreements.”<br /> ;contract law:The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are not always applicable to family law agreements.<br /> ;corollary relief:In an action for an order for divorce, this term refers to all relief apart from the divorce order. For example, one might sue for a divorce as well as custody of the children/ the part of the action relating to custody is the corollary relief. See “Action,” “Order” and “Relief.”<br /> ;corporal punishment:In family law, the physical punishment of a child by a parent or other authorized person. Corporal punishment is permitted under the Criminal Code, but only to a certain extent and only by certain persons, including parents and teachers.<br /> ;costs:A party’s legal expenses, stemming from a legal action, as determined by the Supreme Court Family Rules. A party’s “costs” are not the same as his or her lawyer’s account, and usually amount to about a third to half of that account. The party to an action who is more successful than the other is usually awarded their “costs” of the action. See “Account,” “Bill of Costs,” “Certificate of Costs” and “Lawyer’s Fees."<br /> ;counsel:A lawyer, a barrister and solicitor. Also, the advice given by a lawyer to his or her client.<br /> ;counterclaim:A court document setting out a claim for relief made by a Respondent against a Claimant. See “Notice of Family Claim” and “Response to Family Claim.”<br /> ;Court of Appeal:The highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See “Appeal.”<br /> ;covenant:A promise to do or not do a particular thing. See “Contract,” “Family Agreements” and “Separation Agreement.”<br /> ;cross-examination:The portion of a trial where a party asks questions of a witness presented by the other party to challenge his or her evidence and truthfulness. The questions asked of the witness must be relevant to the issues and may be leading, that is, the question may suggest the answer. See “Examination-in-Chief,” “Evidence” and "Leading Question."<br /> ;Crown:In law, the federal and provincial governments and their departments and agencies. Also, lawyers employed by the government to prosecute criminal offences.<br /> ;cruelty:In family law, the physical, verbal, emotional or mental abuse of one spouse by the other. See "Divorce, Grounds of."<br /> ;custody:In family law, this term traditionally refers party with whom the child lives and at whose home the child eats and sleeps for the majority of the time. The concept of “primary residence” is slowly overtaking this meaning of custody, particularly in circumstances where the parties share joint custody and joint guardianship of the children. See also “Access,” “Guardianship” and “Primary Residence."<br /> <br /> ==D==<br /> ;damages:An award of money payable by one party to the other, usually as compensation for loss or harm suffered as a result of the other party’s actions or failures to act. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse.<br /> ;debt:A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt/ a "creditor" is the person to whom the debt is owed. See "Arrears."<br /> ;decision:In law, a judge’s conclusion after hearing argument and considering the evidence presented at a trial or an application/ a judgment/ the judge's reasons. A judge’s decision will include both his or her conclusions about the relief claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s Reasons for Judgment/ an oral decision is called a Declaratory Judgment. See “Common Law,” "Conclusions of Law" and “Findings of Fact.”<br /> ;declaration:In law, a pronouncement of the court about a fact or a state of affairs. This should not be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "Order."<br /> ;deem:To make an assumption that one thing follows logically from another/ a presumption of a fact based on other facts. Sometimes, a presumption of a fact required by law.<br /> ;de facto:A Latin phrase meaning “in fact.”<br /> ;default:In law, failing to do something which is either optional or mandatory, such as failing to respond to an application or to a claim within the time limits set out in the Supreme Court Family Rules. See “Default Judgment.”<br /> ;default judgment:A judgment obtained by a Claimant following the Respondent's failure to reply the Claimant's claim within the proper time from service. In the Supreme Court, a Respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without a Response to Family Claim being served on the Claimant, the Claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See also “Desk Order Divorce” and “Response to Family Claim.”<br /> ;defence:A reply, rebuttal or answer to an action or application. A Respondent's defence may attack a Claimant's claim on the truth of the facts set out by the Claimant, the law applicable to the case, or both.<br /> ;de jure:A Latin phrase meaning “by law.” By operation of law/ as a matter of law/ by legal right.<br /> ;delivery:See "Ordinary Service.”<br /> ;demand letter:A letter setting out a legal claim sent to the person against who the claim might be made, offering to settle the claim without the necessity of legal action. Demand letters are usually issued before legal proceedings have commenced.<br /> ;de minimus; non curat lex:A Latin maxim meaning “the law does not concern itself with trifles,” also known by its short form, de minimus. This maxim stands for the idea that some claims or arguments, while perhaps legitimate, are too small or negligible to be dealt with by the court.<br /> ;denial:Defending a claim by denying the truth of a fact supporting the claim/ a rejection of the truth of facts alleged.<br /> ;de novo:A Latin phrase meaning “anew/” renewed, from the beginning. An application or trial heard de novo is heard for a second time without giving weight to the result of the first hearing. All of the evidence is presented again, together with evidence of events between the first and second hearing, and the arguments are made afresh.<br /> ;dependant:A person who relies on someone else for their support and the necessities of life. See "Child” and "Spousal Support."<br /> ;deponent:A person giving information about certain facts under affirmation or oath/ a witness. Refers to both a person giving testimony at a trial and a person making an affidavit. See “Affidavit,” “Evidence,” “Testimony” and “Witness.”<br /> ;desertion:The abandoment of one spouse by the other/ the continued absence of one spouse from cohabitation with the other/ a prolonged separation between spouses. This is an old ground of divorce which has been replaced in the modern Divorce Act with simple separation for a period of at least one year. See “Divorce, Grounds of” and “Separation.”<br /> ;desk order divorce:A process in which a divorce, with or without other relief (such as relief relating to spousal support or the care and control of the children), is obtained following the failure of the Respondent to file a Response to Family Claim. A desk order divorce does not require an oral hearing and is the cheapest way to obtain a divorce order. See also “Corollary Relief” and “Divorce.”<br /> ;disability:In law, a legal incapacity to do certain things, like enter into a contract or bring a law suit. Legal disabilities include insanity and being under the age of majority.<br /> ;disbar:To strip a lawyer of his or her right to practice law, usually after a formal inquiry by the Law Society.<br /> ;discontinuance:The cessation or abandonment of an action by the Claimant, or the abandonment of a counterclaim by a Respondent. The discontinuance of a claim indicates a party's intention not to proceed with his or her claim. See "Action" and "Counterclaim."<br /> ;discovery; disclosure:An element of the litigation process in which each party advises the other of the documents in his or her possession which bear on the issues in the action, and the exchange of those documents before trial. This process is regulated by the Supreme Court Family Rules and gives each party an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this exchange is to encourage the settlement of litigation and to prevent trial by ambush, springing new evidence on the other party at trial. Discovery means the formal examination of a party under oath, outside court and in the absence of a judge, about the matters at issue. See "Examination for Discovery."<br /> ;dismiss:In law, a judge’s decision to not to grant a claim sought, or to dismiss an action with or without trial. An application which is dismissed has been rejected by the judge. See also “Application.”<br /> ;disposition:See "Decision."<br /> ;dissent:Disagreement. Also, the decision of a judge of the Court of Appeal who disagrees with the decision reached by the other judges who heard the same appeal. See “Appeal” and “Court of Appeal.”<br /> ;divorce:The legal termination of a valid marriage by an order of the court/ the ending of a marital relationship and the conjugal obligations of each spouse to the other. See “Marriage” and “Validity of Marriage.”<br /> ;Divorce Act:A federal law that deals with divorce, custody, child support and spousal support.<br /> ;domestic contract:See "Family Law Agreements."<br /> ;domicile:The place where one has one’s permanent home, where one lives most of the time/ sometimes the place where one intends to have a permanent home. A party's domicile may have an impact on the jurisdiction of the court to hear an action or deal with certain claims made in an action. See “Jurisdiction” and “Residence.”<br /> ;donee:A person who receives a gift or bequest.<br /> ;donor:A person giving something as a gift, freely and without expectation of payment in return.<br /> ;dower:A common law entitlement of a wife to a portion on her husband’s estate on his death. This common law right has been extinguished and is replaced by certain provisions of the Estate Administration Act and the Wills Variation Act, both of which grant a spouse certain rights on the death of the other. See the section "Legislation."<br /> ;dowry:In some cultures, the property and/or chattels brought into the marriage by the wife, or, the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and claims for dowry will not normally be enforceable. See "Chattels" and "Real Property."<br /> ;draft:A non-final version of a document/ an order prepared following judgment submitted to the court for its approval/ to prepare or "draw" a legal document.<br /> ;duress:Forcing someone to do something by psychological or emotional pressure/ a defence to the enforcement of a contract. If, for example, a separation agreement was entered into under duress, that may be a ground to dispute or set aside that agreement.<br /> ;duty:In law, a legal obligation to do or not do something, whether under the common law or pursuant to legislation. See "Act" and "Common Law.”<br /> <br /> ==E==<br /> ;election:In law, the making of a free choice.<br /> ;enactment:A statute; legislation. See "Act."<br /> ;encumbrance:A third-party right asserted against the ownership of specific property, usually as a result of a debt owed to the third-party. For example, a mortgage secured against real property, or a loan secured against personal property like a car. See “Certificate of Pending Litigation,” “Clear Title” and “Real Property.”<br /> ;endorse:In law, to sign a document or otherwise formally signal one's approval or acceptance of a document, bargain, proposal or contract.<br /> ;endowment:In family law, the giving of dower to a wife or dowry by a wife. See “Dower” and “Dowry.”<br /> ;enjoin:To prohibit or restrain someone from doing something, normally by order of the court. See "Restraining Order."<br /> ;enticement:In family law, the act of intentionally causing a wife to leave her husband or intentionally interfering with a married couple’s consortium, formerly a common law cause of action. TheFamily Relations Act expressly forbids legal actions based on enticement. See "Cause of Action," “Conjugal Rights” and “Consortium.”<br /> ;ergo:A Latin phrase meaning “therefore.”<br /> ;error of law:A ground of appeal which asserts that the trial judge did not apply the law correctly in reaching his or her decision. This is the most common ground of appeal. See also “Appeal” and “Common Law.”<br /> ;estate:The property which a person owns or in which he or she has an interest.<br /> ;et al.:A Latin phrase meaning “and others,” short for et alia. Usually used in a style of cause to indicate that there are more parties to a legal action than are listed. See “Style of Cause.”<br /> ;evidence:Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the Supreme Court Family Rules and the rules of evidence. See “Circumstantial Evidence” and “Hearsay.”<br /> ;evidentiary burden:See "Burden of Proof."<br /> ;examination-in-chief:The portion of a trial where a party asks questions of their own witness to elicit evidence of certain facts. The questions asked of the witness cannot be leading, that is, the answer cannot be suggested in the question. See “Cross-Examination” and “Evidence.”<br /> ;examination for discovery:The cross-examination of a party under oath about the matters at issue in the action, conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties’ lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, under certain circumstances, be used at trial.<br /> ;execute:In contract law, to complete or accomplish; to complete the legal formalities necessary to give a document validity. One "executes" a separation agreement, for example, by signing it in the presence of a witness.<br /> ;executor:The person responsible for carrying out the instructions in a will and resolving a dead person’s estate and debts. The feminine form of the word is “executrix," though the masculine form is commonly applied to executrices. See “Estate,” “Testator” and “Will.”<br /> ;ex parte:A Latin phrase meaning “on behalf of one party;” describing an application being made without notice being given to the other party. Such applications are only heard in urgent situations, for example, where a spouse has threatened to flee with the children. See “Application.”<br /> ;expert evidence:Opinion evidence given by an expert at trial or in an affidavit. Opinion evidence is a statement about what a witness thinks or believes, rather than something personally known as a fact, and is generally not admissible at trial as a result. A person presented as an expert to give opinion evidence must be approved by the court as a qualified expert in his or her field. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists. See “Evidence” and “Witness.”<br /> <br /> ==F==<br /> ;family law agreement:An agreement between two persons about family law issues, dealing with their respective rights and obligations to one another, and which the parties expect will be binding on them and enforceable in court. Typical family law agrements include marriage agreements, cohabitation agreements and separation agreements.<br /> ;family assets:Assets owned by either or both married spouses and subject to division between the two on the breakdown on their marriage. An asset owned solely by one spouse may be found to be a family asset if it is normally used for a family purpose. Family assets are presumed to be divided between the spouses on an equal basis under theFamily Relations Act. See “Business Assets,” “Gifts,” “Inheritances,” “‘Other’ Assets.”<br /> ;Family Relations Act:A provincial law that deals with: the division of property between married spouses&#59; custody, guardianship and access&#59; child support and spousal support&#59; and, personal and financial restraining orders.<br /> ;final judgment:A decision which completely and finally determines some or all of the issues in a legal action, following which there is no other recourse open to a dissatisfied party except an appeal. See “Decision.”<br /> ;finding:A conclusion made by a judge, determinative of a point of law or a disputed fact.<br /> ;finding of fact:A judge’s conclusion about the facts of a case, made after hearing all the evidence. See “Decision” and "Question of Fact."<br /> ;finding of law:A judge’s conclusion about the law to be applied to the facts of a case, or how the law should be applied to the facts of a case, made after hearing argument. See “Decision” and "Question of Law."<br /> ;fornication:Sex between two unmarried people. No longer a criminal offence, thankfully. See “Adultery.”<br /> ;forum:In law, a particular court or level of court, sometimes used in reference to the court's jurisdiction.<br /> ;foster care:A home where a child lives other than with his or her natural or adoptive parents. Such a situation usually arises when the child welfare authorities have apprehended a child or when a child's parents voluntarily give the child up. See "Apprehension."<br /> ;foster parent:An adult charged with the care of a child not his or her own natural or adoptive child, usually in the position of a guardian to the child, who receives money in exchange for caring for the child. See "Apprehension" and "Guardianship of the Person."<br /> ;friend of the court:See "Amicus Curiae."<br /> ;frivolous and vexatious:In law, a phrase describing actions, claims or applications clearly unsupported by the evidence or by the law. Such actions are considered to be a nuisance to the respondent and a waste of the court’s time. See “Action.”<br /> ;frustration:In contract law, an inability to complete or fulfill a contract, whether intentional or unintentional&#59; the intentional intereference with the rights of another under a contract or court order. In family law, the motivation for an application for anullment based on non-consumation of the marriage. A contract which cannot be completed or fulfilled is said to be “frustrated.”<br /> <br /> ==G==<br /> ;gainful employment:Steady work for pay. In family law, a dependant party usually has a duty to find "gainful employment" and become self-sufficient following the breakdown of a relationship. Under certain circumstances, a failure to find gainful employment may justify the termination of spousal support. See "Dependant" and Spousal Support."<br /> ;gift:A voluntary transfer of property from one person to another, without expectation of payment or reward. True gifts do not usually qualify as family assets, making them exempt from division between spouses. See “Donee,” “Donor” and “Family Assets.”<br /> ;good faith:Acting in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase bona fide. See “Bad Faith.”<br /> ;guardian:A person charged with the legal care of someone under a legal disability. In family law, a guardian has the right to give instructions to and receive information from the people involved in the care a child, such as doctors and teachers. Guardians also have an obligation to make arrangements for the necessities of the child’s life, and the right and obligation to make important decisions about how that child grows up. See "Disability."<br /> ;guardian ad litem:A person conducting a legal action on behalf of someone under a legal disability, as if they were that person. Also called a "Litigation Guardian." See "Disability."<br /> ;guardianship of the estate:In family law, being charged with the legal care of a child's assets, usually with the power to use and dispose of those assets for the benefit of the child. See “Guardian.”<br /> ;guardianship of the person:In family law, being charged with the legal care of a child's person, with the power to make decisions about such things as the child's schooling, religious instruction and medical care. See “Guardian.”<br /> ;Guidelines:See "Child Support Guidelines" or "Spousal Support Advisory Guidelines."<br /> <br /> ==H==<br /> ;Hague Conventions; Hague Convention:International agreements between different nations. While there are a number of these agreements, the most important in family law is the Hague Convention on the Civil Aspects of International Child Abduction, which deals with the return of children from foreign countries to which they have been wrongly taken by a parent. The convention is only binding between signatory nations.<br /> ;hardship: See "Undue Hardship."<br /> ;hearing:In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See “Decision” and “Evidence.”<br /> ;hearsay:Evidence of which a witness has no direct, personal knowledge. For example, saying that “Pierre told me that Mitsou trashed the car” or "Mitsou told me she trashed the car" are both hearsay. Hearsay evidence is not admissible, as a witness can only properly give evidence of those facts of which he or she has direct knowledge. There are a number of exceptions to the general rule against hearsay, the most important of which allows certain, limited kinds of hearsay evidence in interim applications, so long as the source of the hearsay information is identified. See “Affidavit,” Applications,” “Evidence” and “Witness.”<br /> ;heirs:In estate law, the people intended or expected to receive property or other benefits under a will; a person's direct lineal descendants. See “Executor” and “Will.”<br /> <br /> ==I==<br /> ;indemnify:To make good a loss or harm suffered by another.<br /> ;indigent:Being flat broke. Persons with limited or no income may apply to the Supreme Court and Court of Appeal for "indigent status," which will exempt them from paying the usual court fees for all or a part of their litigation. See "Action."<br /> ;infant:A person not yet of the age of majority; a minor; a child. See "Age of Majority," "Child" and "Disability."<br /> ;Infants Act:A provincial law that governs the legal capacity of minors and contracts involving minors.<br /> ;inheritance:Real property or personal property received as a result of the provisions of a will or the Estate Administration Act. Inheritances do not usually qualify as family assets subject to division between spouses. See “Family Assets,” “Real Property” and “Will.”<br /> ;injunction:An order that someone not do or cease doing a thing; a restraining order. In family law, injunctions are often sought, for example, to stop someone from moving with the children, disposing of assets or harassing someone else. See “Application” and “Ex Parte.”<br /> ;in loco parentis:A Latin phrase meaning “in the place of a parent.” Acting as a parent in the place of the child’s natural parent or intending to stand in the place of that parent. A person found to be in loco parentis to a child may be responsible to pay child support for that child and may have certain rights with respect to the health and welfare of the child. See “Natural Parent” and “Step-Parent.”<br /> ;in personam:A Latin phrase meaning “against the person.” A right against a person as opposed to against a thing.<br /> ;in rem:A Latin phrase meaning “against the thing.” Refers to a right against objects or property rather than against a person.<br /> ;inspection of documents:The right of a party to look at and copy documents held by the other party which relate to issues in the action; part of the discovery and production process. See “Discovery, Disclosure and Production.”<br /> ;instructions:In law, the directions given by a client to his or her lawyer about the conduct of his or her case.<br /> ;instrument:In law, a legal document which sets out certain rights and obligations, or records certain facts or entitlements to certain benefits and obligations. See “Family Law Agreements.”<br /> ;inter alia:A Latin phrase meaning “among other things.”<br /> ;interim application:An application made after the commencement of a legal action but before its conclusion, usually for temporary relief pending the final resolution of the matter at trial or by settlement without trial. In family law, interim applications are useful to establish certain ground rules between the parties, and determine issues like child custody, child and spousal support on a quick and temporary basis. Also called an “interlocutory application.” See “Application” and “Interim Order.”<br /> ;interim order:Any order made prior to the final resolution of a legal action by trial or by settlement before trial; a temporary, rather than permanent or final order. See “Application” and “Interim Application.”<br /> ;interlocutory:Literally, “between speakings;” refers to interim applications brought after the commencement of a legal action but before its conclusion. See “Interim Application” and “Interim Order.”<br /> ;interrogatories:Written questions are given by one party to the other which must be answered on affirmation or oath or in affidavit form; part of the discovery process. See also “Discovery, Disclosure and Production.”<br /> ;intestate:Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by theEstate Administration Act. See also “Estate,” "Inheritance" and “Will.”<br /> ;in the alternative:A phrase used to indicate secondary relief or a secondary ground of relief, usually presented as an option to the primary relief or primary ground of relief claimed. See “Motion,” “Pleadings” and “Relief.”<br /> ;in trust:A phrase describing property held by one person for the benefit of another person who is ultimately entitled to the property. Money held in trust is held in a lawyer's bank account on the lawyer’s promise not to use that money except as may be agreed.<br /> ;in utero:A Latin phrase meaning “in the womb.” Used in reference to fetuses.<br /> <br /> ==J==<br /> ;joint account:A bank account shared by more than one person, normally with an equal entitlement to deposit or withdraw, with or without the consent of the other account holders.<br /> ;joint custody:A situation in which both parents together have custody of their children. See “Custody.”<br /> ;joint guardianship:A situation in which both parents together have guardianship of their children. Should one parent die in such circumstances, the other parent becomes the sole guardian of the children. See “Guardianship.”<br /> ;joint tenancy:A form of ownership where two or more people co-own a thing. Each joint tenant’s interest in the property is not distinct, that is, it cannot be separated out from the other tenants’ interests. When one joint tenant dies, the other tenants continue to own the whole of the property between them as if the dead person's interest had simply evaporated. See also “Tenancy in Common.”<br /> ;judge:A person appointed by either the federal or provincial government with the authority to hear and decide legal actions in an impartial manner, independent of influence by the government or agents of the government, whose decisions are binding upon the parties to an action. See “Constitution,” "Decision," “Jurisdiction” and "Order."<br /> ;judgment:See "Decision" and "Judgment, Final."<br /> ;jurisdiction:This word has a number of meanings: 1) the authority of the court to hear an action and make orders; 2) the limits within which a court must operate; 3) the limits of the authority of a particular judicial official; 4) the authority of a government to make legislation as determined by the constitution; 5) the geographic location of a court; and, 6) the geographic limits of a court's authority. See “Constitution.”<br /> ;Justice of the Peace:A court official appointed by the provincial government with limited decision-making authority and jurisdiction, also called a JP. See “Judge" and "Jurisdiction."<br /> <br /> ==L==<br /> ;Land Title and Survey Authority:The department of the provincial government responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may lie against a parcel of property.<br /> ;lawyer's fees:The fees a lawyer charges his or her client pursuant to their retainer agreement, for the lawyer's services. Most lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include disbursements, which are costs incurred by the lawyer for such things as couriers, filing documents in court and photocopying.<br /> ;leading questions:Question asked of a witness which suggest their answers, normally asked during cross-examination, such as "You've never worked a day in your life, have you?"<br /> ;lease:An agreement such that the owner of a piece of property (a car or an apartment, for example) gives up the right to occupy and use that property in exchange for something else like money. A "lessor" is the person who retains ownership of the property. a "lessee" is the person who gets the right of possession in exchange for payments to the lessor.<br /> ;legal description:With respect to real property, the full formal identification of a particular piece of property by its lot number, district lot number, plan number and land district, rather than by its street address.<br /> ;legislate:To create, amend and revoke written laws governing things, people and places. a right of the provincial and federal governments to pass and rescind laws derived from the Constitution.<br /> ;legislation:An act, a statute. A written law created by a government.<br /> ;litigant:A party to a legal action, such as a Claimant or Respondent in the Supreme Court, or an Applicant or Respondent in the Provincial Court.<br /> ;lay litigant:A party to a legal action who is not represented by a lawyer and acts on his or her own behalf. "Lay" in this context means amateur.<br /> <br /> ==M==<br /> ;maintenance:In family law, usually refers to payments made by one party to the other to defray that person's daily living expenses or for the living expenses of the a child. also known as support.<br /> ;marriage:A legal and emotional relationship between two people, solemnized by a religious functionary or marriage commissioner, giving rise to certain mutual rights, benefits and obligations.<br /> ;marriage-like relationship:A quality of a romantic relationship indicating the nature of their parties' committment to each other as lovers and partners. A legal requirement for a couple to be considered common-law spouses. A couple in marriage-like relationship live together, share chores together, describe themselves as a couple, and their friends and family think of them as a committed couple.<br /> ;master:A provincially-appointed judicial officer with the limited authority deal with certain issues and certain court processes, including interim applications.<br /> ;material:In law, relevant, important. A "material fact" is a fact relevant to a claim.<br /> ;matrimonial home:In family law, the dwelling occupied by a family as their home.<br /> ;mediation:A dispute resolution process in which a third party with special training, a mediator, helps the parties to a dispute find a resolution to that dispute.<br /> ;memorandum of understanding:A document setting out the essential terms of an agreement reached between two or more people, often used as a guide to the negotiation of a final, more detailed and more complete agreement.<br /> ;minutes of settlement:A document setting out the essential terms of an agreement or settlement reached between two or more people, produced after negotiations and signed by the parties and their lawyers to record the agreements reached to date. Minutes of Settlement are normally used as the foundation of a future final order or agreement, and are often attached to that order or agreement as a schedule.<br /> ;misrepresentation:Acts or words tending to give a false impression as to the true state of affairs.<br /> ;mistake:In contract law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error, including entry into an otherwise binding contract.<br /> ;mortgage:The conditional transfer of ownership in a piece of property to someone else, while retaining possession of the property, to secure a loan. The party to whom the title is given, the mortgagee, usually a bank, is allowed to register the title of the property in his or her name if the person making the transfer, the mortgagor, fails to repay the loan.<br /> ;motion:In law, an application to the court for an order, usually brought after the commencement of an action but before its conclusion following trial or by settlement before trial.<br /> <br /> ==N==<br /> ;natural parent:The biological parent of a child, as distinguished from adoptive parents and stepparents.<br /> ;negotiate:In family law, the process by which a contract or agreement is formed, usually consisting of the mutual compromise of the parties' original positions, through discussion and bargaining, to the extent tolerable by each party.<br /> ;'''non compos mentis''':A Latin phrase meaning "not of sound mind." A person who is ''non compos mentis'' is under a legal disability.<br /> ;notary public:A person authorized to take oaths and affirmations, and execute or certify certain documents. All lawyers are notaries public in addition to being barristers and solicitors.<br /> ;Notice of Appeal:A legal document required by the rules of court which notifies a party of the other party's intent to appeal a decision.<br /> ;Notice of Family Claim (Form F3):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person bringing a family law case, the court the claim will be heard in and the person's Address for Service.<br /> ;Notice of Application (Form F31):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person making an application, the grounds on which that relief is claimed and the date on which the application will be heard.<br /> ;null and void:Invalid. A nullity. Of no legal force and effect. Curiously, null and void mean the same thing.<br /> <br /> ==O==<br /> ;oath:An affirmation of the truth of a statement by one's faith in a god. Someone making an affidavit may give his or her evidence in that affidavit under oath. a witness giving oral evidence may give his or her evidence in court under oath.<br /> ;obligation:A duty at law, whether contractual, moral or legal in origin, to do or not do something.<br /> ;offer:In contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement proposal.<br /> ;offer to settle:A document setting out a formal offer made by one party to the other prior to the trial of an action describing the terms on which the party is prepared to settle the action without trial. Offers to settle can have important consequences, particularly with respect to the award of costs if the offer is close to what the judge decides following trial.<br /> ;officer of the court:Any official of the court, including lawyers, court clerks and judges.<br /> ;omission:A failure to do something, whether intentional or unintentional.<br /> ;order:A mandatory direction of the court, binding upon the parties to a legal action. An "interim order" is a temporary order obtained by an inteirm application. A "final order" is a permanent order and the product of either the trial of the action or the settlement of the parties before trial, following which the only recourse open to a dissatisfied party is to appeal the decision. Orders made with the agreement of the parties are called "consent orders."<br /> ;Ownership:A usually exclusive right to possess and use a thing.<br /> <br /> ==P==<br /> ;the doctrine of paramountcy:The rule that federal legislation on a subject is superior to and takes precedence over any provincial legislation on the same subject.<br /> ;'''parens patriae''':A Latin phrase meaning "parent of the country," the court's inherent jurisdiction to deal with issues concerning persons under legal disabilities.<br /> ;parent:In family law, the natural or adoptive father or mother of a child. may also include stepparents, depending on the circumstances and the applicable legislation.<br /> ;party:In law, a person making or defending an action. someone either asserting a claim in a legal action or subject to a claim made in an action.<br /> ;paternity test:A scientific test performed to determine the parentage of a child, usually performed by DNA testing of the blood or saliva of the alleged parent(s) and the child.<br /> ;peace officer:A person having a duty to enforce the law as a result of his or her employment, including police officers as well as sheriffs, customs officers, and mayors.<br /> ;pecuniary:Relating to money.<br /> ;perjury:Intentionally lying to the court while giving evidence under oath or affirmation. also applies to lying in a sworn document, such as an affidavit. This is an offence.<br /> ;personal property:Chattels, goods. property other than real property.<br /> ;Petition (Form F73):A court document used to commence specific kinds of legal action. The person bringing the action is the Petitioner and the person against whom the action is brought is the petition respondent. An action can only be started by a Petition in certain circumstances. most often actions are started with a Notice of Family Claim.<br /> ;pleadings:A legal document setting out either a claim or a defence to a claim. Usually, the pleadings consist of the Notice of Family Claim, Response to Family Claim and Counterclaim.<br /> ;possession:In law, the right to have the control and use of a thing, but not necessarily the right to own that thing.<br /> ;precedent:This word has a number of meanings, including 1) the historic decisions of the courts, 2) the principle that those decisions are binding on subsequent judges hearing cases of a similar nature or in similar circumstances, and 3) templates or sample documents used to draft a new document.<br /> ;premises:In real property law, a piece of property and a building situated on it, usually, the area of the property surrounding a building on that property. Also, the foundation of a logical argument.<br /> ;'''prima facie''':A Latin phrase meaning "first face," refers to a fact which ought to be obvious.<br /> ;privilege:In law, the duty a lawyer has to keep his or her client's information confidential, including communications between the lawyer and client and advice given to the client. A lawyer cannot reveal privileged communications even to the court, except in certain usual circumstances.<br /> ;proceeding:In law, the whole of the conduct of a legal action, from beginning to end, and all steps in between. may also be used to refer to a specific hearing or trial.<br /> ;proof:Evidence which establishes or tends to establish the truth of a fact. also, the conclusion of a logical argument.<br /> ;'''quantum meruit''':A Latin phrase meaning "the amount of deserved." Refers to payment for a service according to the value of the service rendered.<br /> <br /> ==Q==<br /> ;quash:To set aside or vacate an order or judgment.<br /> ;question of fact:An issue arising where the parties disagree about a material fact relevent to a legal action, when only one party can be right. A court's decision about what the facts of a case are is a "finding of fact."<br /> ;question of law:An issue about which law should be applied in a legal action, or how the law should be applied in the circumstances of a particular action. A court's decision about how the law should be applied to the facts of case or about what the law is in a particular situation is a "finding of law."<br /> <br /> ==R==<br /> ;real property:A piece of land and the buildings on that land. Real property is different from chattels or other personal property because it cannot be moved.<br /> ;rebut:In law, to reply to an argument, a statement of fact or a legal presumption by presenting argument or evidence to the contrary. providing evidence which tends to disturb a presumption.<br /> ;registrar:An officer of the court with the power to make certain decisions, including the terms of a judge's order. also, an officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings.<br /> ;court registry:A central office, located in each judicial district, at which the court files for each legal action brought in that district are maintained, and at which legal documents can be filed, searched and reviewed.<br /> ;regulations:A kind of lesser legislation giving supplemental rules to a particular act. Regulations are created and amended by the government, not the Legislature or Parliament.<br /> ;relief:In law, an order sought by one party to a legal action as set out in his or her pleadings. Where more than one remedy or order is sought, each remedy sought is called a "head of relief."<br /> ;reply:In law, an answer or rebuttal to a claim made or a defence raised by the other party to an action.<br /> ;requisition:A court form (Forms F17, F29 & F35) prescribed by the Supreme Court Family Rules with which a party asks the court registry staff to perform a task (like searching a file) or asks the registrar to make a procedural order (like an order that a party be served substitutionally).<br /> ;residence:The place a person permanently lives. This is different from a person's "domicile" in that a person's residence is more concrete and less changeable in nature. A person's residence can have an impact on the court's authority to hear and decide a legal action.<br /> ;respondent:The person against whom a claim has been brought. Formerly known as the defendant.<br /> ;Response to Family Claim (Form F4):A legal document required by the Supreme Court Family Rules setting out Respondent's position on each of the orders sought by the Claimant in the Notice of Family Claim as well as the Respondent's Address for Service.<br /> ;restraining order:An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of assets, and stopping someone from harassing someone else.<br /> ;resulting trust:In family law, a finding by a court that one party holds property in trust for another as a result of the parties' intention to make a trust. A trust relationship inferred by operation of law.<br /> ;retainer:This word means several things such as 1) the act of hiring of lawyer, 2) the money paid to a lawyer to hire his or her services, and 3) the terms and extent of a lawyer's work on behalf of a client.<br /> ;review:In law, the re-examination of a state of affairs, an order or an agreement, usually to determine whether the terms of an agreement or order are still appropriate. A separation agreement or an order may state that a particular term is "reviewable" at a certain date. On that date the circumstances of each party are re-examined to determine whether the term remains appropriate, and whether the term should be cancelled, changed or let alone.<br /> ;rules of court:A set of codified guidelines governing the court process and litigation generally, and providing the official court forms required. The rules of court are particular to each level of court.<br /> <br /> ==S==<br /> ;sale:An agreement to transfer the ownership of property from one person to another in return for something else, like money or another property.<br /> ;separation agreement:A contract between spouses, partners or parents, intended to resolve all or some of the issues outstanding between them as a result of the breakdown of their relationship, and intended to guide the parties in their dealings with one another thereafter.<br /> ;personal service:The personal delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by physically handing the document to the party and verifying the recipient's identity.<br /> ;ordinary service:The delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by transmitting the document to one of the party's Addresses for Service.<br /> ;Affidavit of Service (Form F15):An affidavit in a form prescribed by the Supreme Court Family Rules sworn by the person who has personally served someone with legal documents, stating that the party was served and describing the circumstances in which service was accomplished.<br /> ;substituted service:Service in a way other than service as prescribed by the rules of court, in the manner and on the conditions imposed by an order of the court.<br /> ;settlement:A resolution of a legal action or of one or more matters at issue in that action, made by the agreement of the parties to that action, as opposed to resolution of the matter by the court following a trial or hearing.<br /> ;spouse:According to the ''Divorce Act'', a spouse is a person who is legally married to someone else, whether of the same or a different gender. Under the ''Family Relations Act'', this term also includes unmarried couples who have lived together in a marriage-like relationship for a period of at least two years.<br /> ;spousal support:Money paid by one spouse to the other to help cover the recipient's living expenses. Also called alimony and maintenance.<br /> ;'''stare decisis''':A Latin phrase meaning "standing by the thing decided," refers to the common law principle that courts are obliged to follow the decisions of the courts before them on the same subjects.<br /> ;'''status quo''':A Latin phrase meaning "the state that was," refers to whatever circumstances or conditions previously existed and, usually, had existed for some time.<br /> ;subpoena:A legal document issued either by the court or by a party which compels a witness to attend court to give evidence, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court.<br /> ;suit:A law suit, an action, a court proceeding, a case. A claimant's claim against a respondent.<br /> <br /> ==T==<br /> ;taxation:A hearing in which a client challenges a lawyer's bill and a lawyer proves his or her bill. A taxation hearing is held before a master or a registrar who examines the account to determine whether the account is fair. The master or registrar assesses the bill and issues a Certificate of Fees stating what amount is properly payable by the client or refundable by the lawyer.<br /> ;tenancy in common:A kind of ownership of a property by two or more persons such that each owner has a distinct and severable share in the property. A tenant in common may chose to sell his or her share in that property independently from other owners.<br /> ;testator:In estate law, a person who has made a will used in reference to that will. The delightful feminine form of this word is "testatrix."<br /> ;testimony:A statement made by a witness to a court as evidence, or made in an affidavit, made under oath or affirmation as to the truth of the statement.<br /> ;third party:A person named in an action or joined to an action who is neither the Claimant nor the Respondent. A third party may be joined to an action where the Respondent believes that the person has some responsibility for the cause of action.<br /> ;title:In law, having legal ownership of a thing. a document evincing legal ownership of a thing.<br /> ;trial:The testing of the respective claims and defences of the parties to an action through the presentation of evidence and legal argument at a formal hearing before a judge with the jurisdiction to hear the matter and to make a final, binding determination of the claims.<br /> ;trust:In law, a form of possession in which one person holds, deals with and is responsible for property for the benefit of another. A "trustee" is the person who holds the property in trust for the other person. the "beneficiary" is the person for whom the property is held.<br /> ;trustee:One who holds property in trust for the benefit of another.<br /> <br /> ==U==<br /> ;unjust enrichment:Money or benefits unfairly gained by one person at a corresponding expense or loss to another.<br /> ;unlawful:Acts or omissions made contrary to legislation or the common law.<br /> <br /> ==V==<br /> ;vacate:The setting aside or quashing of a decision or order, sometimes effective on the date of the vacation, sometimes with a retroactive effect as if the original order had never been made.<br /> ;validity of marriage:For a marriage to be valid, the spouses must be: not within the prohibited degrees of consanguinity, over the commmon law age of puberty, unmarried at the time of the marriage, and capable of understanding the meaning of marriage.<br /> <br /> ==W==<br /> ;waive:In law, to give up a right or entitlement. to give up the opportunity to assert a right or enforce an entitlement.<br /> ;waste:In law, intentionally or unintentionally allowing the value of a piece of property to diminish through carelessness, neglect or purposeful harm.<br /> ;will <sup>def</sup>:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;Will:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;witness:A person giving evidence on the person's oath or affirmation as to the truth of the statements made.</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Resolving_Family_Law_Problems_out_of_Court&diff=622 Resolving Family Law Problems out of Court 2013-01-08T19:29:00Z

<p>209.17.147.129: </p> <hr /> <div>{{JP Boyd on Family Law TOC}}<br /> <br /> Family law problems can be resolved in a bunch of different ways. Court is not the only option. Depending on your particular circumstances, you may never need to darken the doorway of a courtroom! Almost every issue a couple faces when their relationship breaks down can be handled without litigation, as long as both people are able to discuss things and each is flexible enough to find compromise. The only reason why a couple must go to court is to get a divorce.<br /> <br /> This chapter discusses how family law problems can be resolved without going to court. This page provides a <div class="noglossary"> brief </div> description of the different alternatives to court, including parenting coordination, and the different ways that settlements and agreements can be recorded. It will also review what can happen when a party has a change of heart after an agreement has been reached.<br /> <br /> ==Introduction==<br /> <br /> The fundamental goal shared by all alternatives to litigation is to arrive at a settlement of the issues in dispute, particularly those which could have been fought about in court. As you might expect, coming to this sort of settlement requires a certain amount of flexibility and maturity. Most importantly, the people involved must understand that neither of them is going to get everything they want. Whatever a person's wish list might be going into negotiations, the end result always represents a compromise and an accommodation of the other person's goals, wishes and expectations.<br /> <br /> Although it is not always possible to avoid court, such as when one or both people are so pig-headed that they can't or won't compromise their position or where a person must take urgent court action to stop something bad from happening, out-of-court alternatives always offer a cheaper, friendlier resolution to the legal problems that come up when a relationship ends and are far less stressful and disruptive to the people involved and their children.<br /> <br /> It is particularly important to negotiate a settlement when a couple have children. Where there are no children, a couple can walk away from their relationship and have nothing more to do with one another for the rest of their lives. However, where there are children, a couple can expect to be involved with each other, whether they like it or not, for the next five, twenty or forty years. Both parents will want to be at the child's high school graduation, both will want to attend parent-teacher meetings, and both will want to go to school concerts and sports days, and their child will want both parents to be there too. No matter how tense or awkward the relationship between the parents is, they will both be involved in each other's lives until they die or their child predeceases them. As a result, maintaining a functioning relationship is an absolute necessity, and negotiation gives parents the best chance of doing just that.<br /> <br /> For more information about parenting issues after a relationship has ended and how to put the children first in your dispute with the other parent, see the page <span style="color: red;">Children > Parenting After Separation</span>. For more information about the emotional issues that tend to come with the end of a long-term relationship and how to keep those issues from hopelessly complicating your dispute, see the page <span style="color: red;">Marriage & Divorce > Separating Emotionally</span>.<br /> <br /> ==The Family Law Act and Alternatives to Court==<br /> <br /> The provincial ''Family Law Act'' was written to encourage people to revolve family law problems other than through court. According to the government's [http://www.ag.gov.bc.ca/legislation/family-law/pdf/part2.pdf explanation] of the new act:<br /> <br /> <blockquote>"Section 4 emphasizes that out-of-court dispute resolution processes and resolution through agreements are not simply add-ons to litigation but are the preferred option, with court as a valued, but last, resort.</blockquote><br /> <blockquote>"This focus on family dispute resolution signals an important shift from the ''Family Relations Act'', which was criticized for being litigation-focused and for assuming that <br /> every dispute would end in a trial."</blockquote><br /> <br /> The act supports the resolution of family law disputes out of court by:<br /> <br /> * requiring lawyers to explain the different family dispute resolution processes (ss. 4 and 8)<br /> * requiring the people involved in a family law dispute to make full disclosure of the information necessary to resolve the dispute, even when they're not in court (s. 5)<br /> * providing for the use of parenting coordinators to resolve disputes about parenting (ss. 15 to 19)<br /> * including mediation and collaborative processes as approved dispute resolution processes (s. 1)<br /> * changing the rules about arbitration to better accommodate the arbitration of family law disputes (ss. 305 to 313)<br /> * allowing the court to delay a court proceeding while the parties attempt to resolve a family law dispute out of court (s. 223)<br /> <br /> The act also allows the court to require people involved in a court proceeding to attempt to resolve their dispute out of court, and to attend counselling if the court is of the view counselling would be helpful:<br /> <br /> <blockquote><tt>'''224''' (1) A court may make an order to do one or both of the following:</tt></blockquote><br /> <blockquote><blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote></blockquote><br /> <blockquote><blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.</tt></blockquote></blockquote><br /> <blockquote><tt>(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs.</tt></blockquote><br /> <br /> This is a dramatic change from the old ''Family Relations Act'' which didn't deal with out of court dispute resolution options except in terms of how agreements could be enforced or set aside.<br /> <br /> ==Alternatives to Court==<br /> <br /> There really are only two ways to resolve a legal dispute without going to court, you can negotiate a settlement or you can ask someone other than a judge to arbitrate the dispute and impose a resolution. Judicial settlement conferences, mediation and collaborative processes are types of negotiation. Parenting coordination is a hybrid process using elements of mediation and elements of arbitration.<br /> <br /> ===Negotiation===<br /> <br /> Negotiation is a cooperative effort to resolve a dispute through discussion. Mediation and collaborative processes are nothing more than structured ways of handling this discussion; they are processes of negotiation.<br /> <br /> Couples can negotiate between themselves, with the help of a lawyer, or with the help of a judge at a settlement conference. Negotiation boils down to this:<br /> <br /> <blockquote>'''Pat''': "I'll give you 60% of the house sale proceeds if you'll let me keep my Porsche."</blockquote><br /> <blockquote>'''Sandy''': "Look, 60% is great, but I need some compensation for my interest in the Porsche. Why not give me 65% of the house and half of your hockey card collection."</blockquote><br /> <blockquote>'''Pat''': "You know how important my hockey card collection is to me. Let me keep my hockey cards, I'll give you 60% of the house, and I'll sell the Porsche and give you half of what I get for it. Plus, I'll let you keep your Hyundai."</blockquote><br /> <br /> In a process of negotiation, each person gives a little and takes a little, all in the hope that at the end of the day they'll be able to come to an agreement on all of the issues that have cropped up because of the end of their relationship. If a settlement is reached, the parties almost always put the agreement in some written form; in fact, writing it down is really important. Without some record of the deal that was reached, there's no way to confirm that the deal was if people start remembering things differently.<br /> <br /> ===Collaborative Processes===<br /> <br /> Collaborative settlement processes are a kind of structured negotiation in which the parties and their lawyers sign an agreement not to go to court and to work together as a team to find compromise and a settlement. The team can use divorce coaches to address the emotional and psychological issues arising from parties' separation. Other specialists can be recruited to help with particular subjects, such as children's issues or complicated financial problems, as the need arises.<br /> <br /> There are collaborative practice groups all over British Columbia. More information about collaborative processes can be found in the <span style="color: red;">collaborative processes</span> page and at the websites of <span style="color: red;">Collaborative Divorce Vancouver, Metro Vancouver's Collaborative Association, Victoria's Collaborative Family Law Group, and the Okanagan Collaborative Family Law Group</span>, among others.<br /> <br /> ===Mediation===<br /> <br /> Mediation is another kind of structured negotiation in which the parties attempt to arrive at a final agreement with the help of a mediator. A mediator is a neutral third party who guides the parties through their negotiations, helps to identify the parties' interests and helps them to find compromise. The goal of mediation is to arrive at a settlement of some or all of the issues in dispute which both parties are as happy with as possible. <br /> <br /> If a settlement is reached, the terms of the deal can be set out in a consent order, a separation agreement or in minutes of settlement, depending on the circumstances and the preferences of the parties.<br /> <br /> Some lawyers also work as mediators. Lawyers who work as mediators are called "family Law mediators" and have to have additional training in mediation, family violence and power dynamics in dispute resolution processes. Lawyers who are family law mediators will usually advertise that they are both litigators and mediators. More information about the training requirements of family law mediators is available at the website of the <span style="color: red;">Law Society</span>.<br /> <br /> ===Arbitration===<br /> <br /> Arbitration is a decision-making process that's a lot like court. In arbitration, the parties hire an arbitrator to act as their personal judge and agree that the arbitrator can make decisions about their dispute that they will be bound by, as if the decisions had been made by a judge in court. However, unlike court, arbitration is a completely private process and the parties can proceed at their own pace.<br /> <br /> Arbitration is a lot more formal than mediation, because the arbitration process can be very much like the court process. Each party presents evidence and arguments, and tries to persuade the arbitrator that their position is the right one. Mediation, on the other hand, is often more like a conversation, and there is no evidence and no formal rules of procedure.<br /> <br /> Arbitration is governed by the ''Arbitration Act'', and is, like mediation and collaborative processes, one of the dispute resolution processes that the court can refer people to under the ''Family Law Act''. <br /> <br /> Some lawyers also work as arbitrators. Lawyers who work as arbitrators are called "family Law arbitrators" and have to have practiced as a lawyer for ten years and have additional training in arbitration, family violence and power dynamics in dispute resolution processes. Lawyers who are family law arbitrators will usually advertise that they are both litigators and arbitrators. More information about the training requirements of family law arbitrators is available at the website of the <span style="color: red;">Law Society</span>.<br /> <br /> ===Using Mediation and Arbitration Together===<br /> <br /> Mediation has lots to recommend it. It's cooperative, it's based on discussion and compromise, and its goal is to reach a settlement by consensus. However, without that last ingredient, consensus, mediation will always fail. It sometimes makes sense to include a way of breaking an impasse, and that might mean giving the mediator the power to resolve a stalemate by imposing a decision like an arbitrator. This hybrid approach to mediation and arbitration is called "med/arb."<br /> <br /> In a med/arb process, the parties will sign an agreement that commits them to the mediation process and describes what will happen if agreement can't be reached. The agreement should talk whether the mediator will use information from the mediation phase to make decisions in the arbitration phase, and how other evidence will be presented in the arbitration phases. It's really important to understand what will trigger the end of mediation and the beginning of arbitration, and whether the mediator will have the power to make decisions as an arbitrator on all issues or just some of them.<br /> <br /> ===Parenting Coordination===<br /> <br /> Parenting coordination is a hybrid dispute resolution process that relies on both mediation and arbitration, and is only used to deal with problems about the care of children after a parenting plan has been put in place under a court order or a separation agreement. Parenting coordination is a child-focussed process in which a neutral third party, a parenting coordinator, helps parents implement the terms of their parenting plan. Parenting coordination is really is only useful for parents who always seem to find themselves in conflict about parenting issues, despite their order or agreement.<br /> <br /> In the parenting coordination process, the parents hire a parenting coordinator and sign a parenting coordination agreement that outlines their rights and responsibilities to each other and the scope of the parenting coordinator's services and authority. When a problem crops up, one of the parents will contact the parenting coordinator and the parenting coordinator will get to work. First, the parenting coordinator will try to work out a solution by finding consensus, like a mediator. However, if the parents can't be helped to reach an agreement, the parenting coordinator will impose a resolution to the dispute, like an arbitrator.<br /> <br /> Parenting coordinators are family law lawyers and mental health professionals who are hired on a long-term basis, usually for six to twenty-four months. Lawyers who work as parenting coordinators have to have practiced as a lawyer for ten years and have additional training in parenting coordination, arbitration, mediation, family violence and power dynamics in dispute resolution processes. Lawyers who are parenting coordinators will usually advertise that they also provide those services. <br /> <br /> More information about the training requirements of parenting coordinators is available at the website of the <span style="color: red;">Law Society</span>. More information about parenting coordination is available at the website of the <span style="color: red;">BC Parenting Coordinators Roster Society</span>.<br /> <br /> ==Unbundling Dispute Resolution Processes==<br /> <br /> The end of a relationship can be a messy business at times. In addition to the legal issues that sometimes come up, there are always emotional issues, and the emotional issues can sometimes cloud people's judgment. (This is one of the reasons why hiring a lawyer can be a good idea; the lawyer's job is to help you see the forest when all you can see is the tree in front of you.) Over time, the intensity of the emotional issues changes and, hopefully, mellows. This can have an effect on how the legal issues are managed; things which seemed terribly urgent or incapable of compromise become less urgent and more susceptible to alternatives.<br /> <br /> At the same time, the people who used to be a couple are also moving forward with their lives and learning how to live independently and apart. They're setting up separate homes, and establishing separate bank accounts. Temporary parenting arrangements get sorted out, whether by habit, by agreement or by court order, and temporary arrangements get worked about how the family's income will be distributed to support two homes. This too has an effect on how the legal issues are managed. <br /> <br /> As the circumstances and attitudes of the parties evolve, so should the approach being taken to the resolution of their dispute. <br /> <br /> It seems obvious to me that no one dispute resolution process is going to be appropriate throughout the life of a dispute, except perhaps litigation when the conflict between the parties is extreme or there are mental health or violence issues which need to be addressed. Except for unhappy situations like that, different dispute resolution processes will be appropriate for different issues at different times over the course of a dispute. Being sensitive to this can really pay off.<br /> <br /> Say, for example, mediation has got you to the point where you agree on everything except for a technical issue, like someone's income or the best way to divide a family business. Rather than getting hung up the issue that you're stuck on, why not try something different? Agree that the issue will be dealt with through arbitration. Agree that the issue will be referred to a senior family law lawyer with special expertise in the area, and agree to be bound by the lawyer's recommended solution. Agree to seek the opinion of a non-lawyer expert. Or, if you must, agree to take that one issue to trial or ask a judge to give an opinion on the issue at a settlement conference.<br /> <br /> There is a whole spectrum of processes that can be used to resolve some or all aspects of a family law dispute. Litigation, arbitration, mediation, collaborative processes and negotiation are all important means of resolving disputes, and more than one process can be best suited for any given problem at any point over the course of a dispute. However, being creative can suggest further options like agreeing to be bound by the opinion of a respected lawyer or taking just one issue to a settlement conference. Don't get locked into the idea that only litigation or only mediation will work; be willing to think outside the box.<br /> <br /> ==Formalizing the Settlement==<br /> <br /> It is always best to write out the terms of a deal when a deal is done. Writing the agreement out gives everyone a written record of their settlement which they can refer to if there's a dispute about the agreement down the road.<br /> <br /> Although it's true that oral agreements are just as binding as written agreements, it can be very difficult to prove the terms of the agreement, especially when a lot of time has passed since the oral agreement was originally made. On the other hand, when an agreement is written down, that written record is usually all the will court need to determine the terms of the agreement. Notes scribbled on a napkin, for example, might be a written agreement that the court will uphold. Letters exchanged in the negotiation process have also been found to record the terms of an agreement.<br /> <br /> Lawyers and mediators always make a tremendous effort to record the terms of a settlement as clearly and comprehensively as possible, and will usually put the settlement into a formal document like a separation agreement, a memorandum of understanding, minutes of settlement or a consent order.<br /> <br /> ===Separation Agreements===<br /> <br /> A separation agreement is a written contract entered into after the breakdown of a relationship. The terms of the contract are the terms of the settlement reached between the parties, plus a lot of extra language that describes the parties' relationship, summarizes the background of the settlement discussions, confirms that each party had legal advice about the agreement, and confirms that the parties intend to be bound by the contract.<br /> <br /> Separation agreements are the product of negotiation, a collaborative settlement process or mediation, and may deal with all or just some of the issues between the parties. A separation agreement can be used to record a settlement reached even after litigation has started.<br /> <br /> Separation agreements are discussed more in more detail in the page <span style="color: red;">Family Agreements > Separation Agreements</span>.<br /> <br /> ===Minutes of Settlement===<br /> <br /> Minutes of settlement are used to create a quick record of an agreement and are not as comprehensive and detailed as separation agreements. Sometimes minutes are drafted by a mediator when the mediator isn't a lawyer or expects the lawyer for one of the parties to write a proper separation agreement. Sometimes minutes are used when a settlement has been reached on the brink of trial and there isn't enough time, or maybe enough energy, to draft a property consent order. Typically, minutes of settlement are little more than an outline of the essential points agreed to, on the understanding that the terms will be elaborated and put into proper legal language later.<br /> <br /> Minutes of settlement are the product of negotiation or mediation, and usually deal with all of the issues between the parties. The terms of the minutes are usually used to draft a consent order or a separation agreement. When minutes are used for a consent order, they are usually attached to the back of the order.<br /> <br /> Minutes of settlement are signed by the parties and are their lawyers. As a result, minutes of settlement can be enforced by the courts as a binding agreement between the parties, even without a judge approving the consent order or without the parties signing a separation agreement.<br /> <br /> ===Memoranda of Understanding===<br /> <br /> A memorandum of understanding describes the terms on which all or part of a dispute has been settled. Memoranda are even less formal than minutes of settlement, and may not even be signed by both parties or both lawyers. A memorandum may even take the form of a letter sent by one of the lawyers:<br /> <br /> <blockquote>"I confirm that in our telephone conversation of earlier this afternoon, we agreed that Harjit would see the children on weekends, Suman would have the children's primary residence and that Harjit would pay child support to Suman in the amount of $326.00 per month."</blockquote><br /> <br /> While memoranda of understanding can be enforced by the courts on their own, they are almost always put into a more formal document later on, either as a consent order or as a separation agreement.<br /> <br /> ===Consent Orders===<br /> <br /> Consent orders are orders that parties have agreed the court should make. The order is meant to reflect the terms of a temporary or permanent agreement between the parties, on some or all of the issues, after litigation has started. <br /> <br /> Sometimes, parties will come to an agreement before an action has started and want to put the agreement in the form of a court order rather than in the form of a separation agreement. This would really only make sense if there was some important legal reason to have the agreement put into an order, or if the court would be asked to make an order anyway, like a divorce order. <br /> <br /> When the judge makes the consent order, the order is just as important and just as binding as if it was an order made after a trial. Consent orders are notoriously difficult to appeal or change without proof of some sort of deception by the other side or a subsequent change of circumstances. <br /> <br /> ==Wait, I've changed my mind!==<br /> <br /> Generally speaking, is ''not'' okay to change your mind after you've come to a settlement, especially right after you've reached the settlement. What you can do about it, if you can do anything about it, changes depending on whether the agreement has already been reduced to writing.<br /> <br /> ===After the Agreement has been Formalized===<br /> <br /> If you have a change of heart after a separation agreement has been signed, you can attempt to negotiate an amendment to the terms of the agreement. Amendments are a further agreement, put into writing and executed just like the original separation agreement, and are usually described as an "amending agreement." However, if the other side isn't prepared to change the agreement, you'll have little choice except to go to court and ask the judge to make an order different than the terms of the agreement. Be warned: this will be very difficult unless you can show that there was a significant flaw in how the agreement was reached or that there has been a serious and unexpected change in circumstances since the agreement was executed. You can't ask the court to make an order different from the agreement just because you've decided you don't like it; there must be an awfully good reason why the court should do anything different than what you agreed to.<br /> <br /> If you have a change of heart after a consent order has been pronounced, you'll face exactly the same problem. You can try to negotiate the terms of a new order varying the consent order, which will be presented to the court also by consent in the same manner as the original consent order. Failing that, you'll have to apply to court to change the original consent order. You will have to prove that there has been a meaningful and unexpected change in circumstances since the order was made or that there was a significant flaw in how the agreement leading to the consent order was reached.<br /> <br /> Varying separation agreements is discussed in more detail in the page <span style="color: red;">Family Agreements > Making Changes</span>, and varying orders is discussed in the sections <span style="color: red;">Children, Child Support, Spousal Support and Family Assets</span>.<br /> <br /> Note that if you disagree with an order or a separation agreement and simply decide not to comply with the order or agreement, the other side will be able to go to court to enforce the terms of the order or agreement. In the case of a court order, you could also be faced with an application for an order that you be found in contempt of court. Contempt is punishable by jail time, a fine, or both jail time and a fine. Note also that minutes of settlement and memoranda of understanding may be enforceable as a binding agreement in the same way that separation agreements are enforceable.<br /> <br /> The enforcement of orders and agreements is discussed in the page <span style="color: red;">Other Family Issues > Enforcing Orders & Agreements</span>.<br /> <br /> ===Before the Agreement has been Formalized===<br /> <br /> People sometimes have a change of heart between the time the deal is struck and the time the agreement is put into the form of a consent order or a separation agreement. If this happens, you have two options: live with the agreement; or, attempt to get the other side to agree to change the agreement. <br /> <br /> You must really think hard before bringing your complaint to the other side, because any attempt to renegotiate the deal can upset not only the terms that you want to change but also the terms that you're really quite happy with. As well, the agreement that you struck may be enforceable even before it is put into the form of a separation agreement or court order. Here are some things to think about:<br /> <br /> * Is the thing you want to change something you can actually live with? Is changing that one thing worth the risk of losing the settlement altogether?<br /> * Is it worth the additional legal fees it will cost to go back into the negotiation process and to draft a new agreement?<br /> * Is it worth the chance of losing other aspects of the settlement that you're happy with but that the other side isn't too keen on?<br /> * Is it worth the risk that the other side will start a court action to enforce the agreement? Is it worth the legal fees it will cost to defend an action to enforce the agreement?<br /> <br /> Remember that the negotiation process is a process of give and take. It is almost a certainty that you are going to be unhappy with some aspects of the agreement, just as the other side is going to be unhappy with other aspects of the agreement; the two of you both gave things up and compromised your positions in reaching settlement. After all of the anxiety of the negotiation process and the pain of giving up on a hard-fought point, it is also almost a certainty that if one side wants to re-open an issue, the other side will want to re-open other issues.<br /> <br /> Finally, you should also consider whether the thing you want to change is worth losing your lawyer. If your lawyer was with you at the bargaining table and acted for you in negotiating the terms of your agreement, your lawyer is under a professional obligation not to continue acting for you if the agreement was made in good faith, in the absence of some deception by the other side. Your lawyer may have no choice but to quit, and you will have to hire a new lawyer.<br /> <br /> ==Further Reading in this Chapter==<br /> <br /> * <span style="color: red;">Collaborative Processes</span><br /> * <span style="color: red;">Mediation</span><br /> * <span style="color: red;">Arbitration</span><br /> * <span style="color: red;">Parenting Coordination</span><br /> <br /> ==Page Resources and Links==<br /> <br /> ===Legislation===<br /> <br /> * <span style="color: red;">bulleted list of linked legislation referred to in page</span><br /> <br /> ===Links===<br /> <br /> * <span style="color: red;">bulleted list of linked external websites referred to in page</span><br /> <br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Talk:Terminology&diff=566 Talk:Terminology 2012-12-28T17:52:14Z

<p>209.17.147.129: /* Definitions that Need Attention */</p> <hr /> <div>==NoGlossary Tag==<br /> Added by Drew on Dec 24/12: There will inevitably be instances where a term that is in the glossary is used in the text in a different context than the defined term - for example, "order" being used as "in order to" rather than "court order". There is an incredibly simple way to handle those situations. You wrap this tag around the term:<br /> :<nowiki><span class="noglossary">your defined term appears here</span></nowiki><br /> <br /> The result is that the glossary popup does not display for that use of the term. It will display for the next use of that term on the page (you can then add the noglossary tag to that second use of the term if desired, or the third, etc.). <br /> <br /> You can also exclude an entire page from having glossary popups appear by including anywhere in that page:<br /> :<nowiki>__NOGLOSSARY__ </nowiki><br /> <br /> ==Definitions that Need Attention==<br /> These are definitions that need some attention to account for potential conflicts with how the term plays out in other areas of law:<br /> * '''advance''' - maybe this one isn't really needed? (added here by Drew on Dec 24/12)<br /> * '''arrears''' - with this one, what about taking the approach that JP takes with the terms "jurisdiction" or "precedent", where he offers several alternate definitions. I actually think this is really helpful for the user, as it provides them with context that the term they are looking at can have different legal meanings depending on the context. (added here by Drew on Dec 24/12)<br /> * '''negotiate''' - this one could be solved by simply taking out the opening clause "In family law", which I don't think is really necessary is it? (added here by Drew on Dec 24/12)<br /> * '''pleadings''' - would JP be ok for this one to be slightly more generic? (added here by Drew on Dec 24/12)<br /> <br /> These are definitions that we may want to take out or adjust, given that they are terms that appear in a different context alot and the work to apply the noglossary tag may not be worth the value of including these definitions:<br /> * '''account''' (added here by Drew on Dec 24/12)<br /> * '''bill''' (added here by Drew on Dec 24/12)<br /> * '''brief''' (added here by Drew on Dec 28/12)<br /> * '''review''' (added here by Drew on Dec 24/12)</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Terminology&diff=558 Terminology 2012-12-24T21:40:35Z

<p>209.17.147.129: /* M */</p> <hr /> <div><div class="noautonum">__TOC__</div><br /> ==A==<br /> ;ab initio:A Latin phrase meaning "from the beginning." A marriage which is unlawful is void ''ab initio'', as if it never happened.<br /> ;abduction:The taking of a person by force or fraud. In family law, the taking of a child contrary to a court order or without the other parent's permission. In certain circumstances, this may also be a criminal offence.<br /> ;abrogate:To revoke or annul. One "abrogates" a contract, like a family agreement, by doing something expressly contrary to the agreement. One party's act of abrogation may not void the agreement, but will give the other party a cause of action.<br /> ;access:A parent's time with their children following the breakdown of the parent's relationship. Access usually refers to the visits of a child with the parent who doesn't have the child's primary residence.<br /> ;account:In law, a lawyer's bill to his or her client. Also, a statement of one person's view of events.<br /> ;Act:A law passed by a government, also called "legislation" or a "statute." Also, the intentional doing of a thing.<br /> ;action:A law suit. or a legal proceeding in which one party sues another for a remedy or specific relief. In family law, an action for divorce is a court proceeding in which the claimant sues the respondent for the relief of an order for the parties' divorce.<br /> ;address for service:The address at which a party must accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addreses for service may include postal addresses, fax numbers and email addresses.<br /> ;adoption:In family law, the act or process of one person taking another person's natural child as his or her own. The child then becomes the adopting parent's legal child as if the child were the adopting parent's natural child, and the child's biological parent loses all rights and obligations with respect to the child.<br /> ;''Adoption Act'':A provincial law dealing with entitlement to adopt and the adoption process.<br /> ;adoptive parent:A person who has formally assumed the status of parent to a child who is not his or her biological offspring. <br /> ;adultery:The act of a married person voluntarily engaging in sexual intercourse with a person other than his or her spouse; cheating; playing around; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act.<br /> ;advance:In family law, this usually refers to one party obtaining a share of his or her portion of the family assets before those assets have been divided, whether following trial or a final settlement of the matter.<br /> ;advocate:A lawyer; sometimes a person other than a lawyer who presents and argues a case in court on behalf of a party to the proceeding. Also, to argue a debated position.<br /> ;affidavit:A legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally under oath. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit about the truth of its contents. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements orally before a judge at trial.<br /> ;affirm:To promise that a statement is true. When someone "swears" to tell the truth, they are considered to be taking an oath on their faith in a god. Affirming is a substitute for swearing something before a god, most often employed where person making the statement is an atheist or under a religious proscription from making oaths.<br /> ;age of majority:The age at which someone becomes a legal adult with the full capacity to act on their own, independent of their parents, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority.<br /> ;agent:In law, someone acting on behalf of someone else, with that person's express permission and normally their express direction.<br /> ;alias:A name by which people know you other than your legal name.<br /> ;alienation:In family law, the actions or statements of a parent which tend to sever, damage or harm the child's relationship with or affections for the other parent.<br /> ;allegation:An assertion that a certain set of facts is true, such as "on Monday, I had soup for lunch" or "Bob drives a blue Camaro." Also called an allegation of fact or a statement of fact.<br /> ;alternative dispute resolution:A phrase referring to processes for the resolution of disputes outside the court system, including mediation, negotiation and collaborative law. In family law, the purpose of ADR is to offer a less conflict-oriented and less expensive way to resolve a dispute than litigation.<br /> ;amend:To change or alter a pleading or document which has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "Amended Counterclaim."<br /> ;amicus curiae:A Latin phrase meaning "friend of the court." Usually refers to a lawyer who does not act for any of the parties and assists or brings relevant information to the attention of the presiding judge.<br /> ;annulment:A declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occured. <br /> ;answer:A response to a claim or an allegation of fact. Usually refers to legal documents used to reply to the allegations or claims of another party, such as a Response to Family Claim, an Application Response or a Reply.<br /> ;appeal:An application to a court for a review of the decision of a lower court and, hopefully, the reversal of that decision. A decision of a judge of the Supreme Court of British Columbia is, for example, appealed to the Court of Appeal for British Columbia.<br /> ;applicant:The party to an action who brings an application to court in the course of that action, usually an application for an interim order.<br /> ;application:A request to the court that it make an order for specific relief, usually on an interim or temporary basis.<br /> ;application respondent:The party to an action against whom an application has been brought in the course of that action. the party replying to the applicant's application, usually an application for an interim order.<br /> ;Application Response (Form F32):A legal document required by the Supreme Court Family Rules setting out the application respondent's position on the relief claimed in an application and the grounds on which that relief is opposed.<br /> ;arbitrator:A person selected by the parties to a dispute to resolve their dispute outside the court process and to whom the parties give the authority to impose a settlement.<br /> ;arbitration:A dispute resolution process subject to the principles of natural justice in which the parties pick the person who will resolve their dispute and agree to be bound by the arbitrator's decision.<br /> ;argument:In law, persuasion by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence about the facts of a case, or to a written brief of argument.<br /> ;arrears:Money owing for child support or spousal support as a result of an agreement or a court order which has not been paid.<br /> ;assess:To determine the value or amount of something. A lawyer's bill may be assessed by a registrar to determine the proper amount the client should pay. a piece of property may be "assessed" to determine its likely sale price.<br /> ;assign:To transfer an interest or right in something, such as property or a cause of action, to someone else.<br /> <br /> ==B==<br /> ;bad faith:Intentionally misleading someone else, whether by doing or not doing something. acting in a manner contrary to one's actual intention. an intentional failure to act honestly and openly. Also called ''male fides''.<br /> ;barrister & solicitor:A lawyer. a person licenced to practice law in a particular jursidiction. In England barristers do trial work and solicitors draft legal documents. In Canada, lawyers are both barristers and solicitors.<br /> ;beneficiary:The person for whose benefit a trustee holds property. the recipient or intended recipient of property passed in a will.<br /> ;bill:A lawyer's statement of account. Also, draft legislation presented by government to the Legislature or Parliament for approval.<br /> ;binding:A requirement or obligation to honour and abide by a contract or order of the court. for example, a judge's order is binding in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be followed by a lower court.<br /> ;bona fide:A Latin phrase meaning "in good faith;" doing something honestly and openly, without the intention of misleading or causing harm to someone else.<br /> ;breach of contract:Acting or failing to act in a manner contrary to the terms of the agreement. In family law, a breach of a term of a family agreement may give rise to a cause of action for the other party, but the breach is unlikely to allow the other party to treat the agreement as if it were cancelled or void.<br /> ;brief:A written argument. a memorandum of law. A brief is usually presented to a judge as a summary of an argument or a summary of the law on a particular issue.<br /> ;business assets:In family law, property owned by a spouse's company or corporation and not used for family purposes. Business assets are not usually subject to division between spouses, unlike family assets.<br /> ==C==<br /> ;Charter of Rights and Freedoms:A part of the ''Constitution Act, 1981'' which sets out the fundamental rights and freedoms shared by all Canadians, including the freedoms of religion and expression and the rights to life and liberty. Neither the federal nor the provincial governments can pass laws or act in ways contrary to the ''Charter''. Certain sections of the ''Charter'', particularly the portions dealing with equality rights, have a special importance for family law. For example, the way that the provincial ''Family Relations Act'' treats unmarried and married couples differently for the purposes of dividing their assets may be contrary to equality guarantees set out in the ''Charter''.<br /> ;case:A law suit. an action. a cause of action. an instance of litigation. Also refers to a historic decision of the court.<br /> ;certificate of pending litigation (CPL):A document filed in the Land Title and Survey Authority against the title of a piece of real property stating that the property is the subject of litigation and that ownership of the property may change as a result. In family law, a CPL is used to protect the interest of a spouse in a piece of property by prenting the property from being sold or remortgaged.<br /> ;chattel:An item of personal property. Distinguished from real property in the sense that chattels can be picked up and taken from place to place, but real property cannot.<br /> ;child support:Money paid by one parent to the other to help defray a child's living expenses. Also known as maintenance and palimony.<br /> ;Child Support Guidelines:A federal regulation which sets out the amount of child support a party must pay based on the party's income and the number of children involved and provides rules about the calculation of child support. The tables that set out the amount of support payable differ from province to province.<br /> ;claim:The assertion of a legal right to something, whether to an order or to a thing. the relief sought by one party against the other.<br /> ;claimant:The person who starts a legal action seeking orders against another party, the respondent. Formerly known as the plaintiff.<br /> ;clear title:Ownership of property free of any debt registered against the property. For example, owning a piece of land without a mortgage, or owning a car without a car loan.<br /> ;coercion:The use of force or intimidation to compel someone to do something. interference with another person's freedom of choice. For example, saying "sign this separation agreement or you'll never see your children again."<br /> ;cohabitation:Living with another person in a "marriage-like relationship" while legally unmarried. shacking up. living in sin. playing house.<br /> ;collusion:An agreement to do something with another person towards an illegal goal.<br /> ;common law:This phrase has a number of different meanings such as 1) a legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, 2) the system of justice used in non-criminal cases in all provinces except Quebec, and 3) the legal status of an unmarried couple who qualify as "spouses" under any particular law, such as the ''Family Relations Act''.<br /> ;competent:In law, having the capacity or ability or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of his or her evidence. A court which has competent jurisdiction has the authority to deal with the issues in a case and has authority over the parties to that case.<br /> ;conclusion of fact:A judge's decisions as to what the facts of a case are, based on the evidence he or she has heard and his or her evaluation of the credibility of the witnesses giving that evidence.<br /> ;conclusion of law:A judge's decision about what law applies in a particular case and his or her conclusion about how that law should be applied.<br /> ;concur:To agree.<br /> ;concurrent:Happening or existing at the same time. Two courts of "concurrent jurisdiction," for example, each have the jurisdiction to hear the same case and deal with the same issues.<br /> ;condonation:Forgiving a wrongful act. In family law, usually refers to the forgiving of an act of adultery or cruelty and the continuation of the parties' relationship as it was before.<br /> ;conjugal rights:A quaint and somewhat outdated idea describing a spouse's right to enjoy the benefits of married life, including the comforts of living with his or her spouse, sharing meals, emotional comfort and sympathy, mutual confidence and privacy, sex and so forth.<br /> ;connivance:Causing or permitting a wrongful act. In family law, usually refers to conspiring toward adultery as a ground of divorce to trick the court into making a divorce order.<br /> ;consanguinity:Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity set out in the ''Marriage (Prohibited Degrees) Act''.<br /> ;consent:Agreement. making a choice of one's own free will after giving the matter thought.<br /> ;consent order:A court order that all parties to an action agree the court should make. Consent orders may be interim or final.<br /> ;consortium:The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other.<br /> ;conspiracy:The agreement and intention of two or more people to do an unlawful act, or to do a lawful act by unlawful means. A "conspirator" is a party to a conspiracy.<br /> ;constitution:The rules which set out the political and legal organization of a state. The power and authority of the government, the legislature and the court stem from the constitution. In Canada, there are two primary constitutional documents, the ''Constitution Act, 1867'' and the ''Constitution Act, 1982''. The ''Charter of Rights and Freedoms'' is part of the ''Constitution Act, 1982''.<br /> ;construction:In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one parent "will have the children on Monday, Tuesday and Friday" but didn't say anything about the other parent, the agreement would likely be constructed to mean that the other parent would have the children on the days not mentioned.<br /> ;constructive trust:In family law, a trust relationship imposed to remedy the unjust enrichment of one party.<br /> ;contempt of court:Doing something or failing to do something which impairs the administration of justice or respect for the court’s authority. For example bribing a witness, disobeying a court order or misleading the court. Contempt of court is a civil offence as well as a criminal offence.<br /> ;contract:An agreement by two or more people which gives them enforceable obligations towards each other, usually in writing. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must change hands.<br /> ;contract law:The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are not always applicable to family law agreements.<br /> ;corollary relief:In an action for an order for divorce this term refers to all relief apart from the divorce order. For example, one might sue for a divorce as well as custody of the children. the part of the action relating to custody is the corollary relief.<br /> ;costs:A party's legal expenses stemming from a legal action, calculated under the rules of court. A party's costs are not the same as his or her lawyer's account. The party to an action who is more successful than the other is usually awarded his or her costs of the action.<br /> ;Counterclaim (Form F5):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a Respondent against a Claimant.<br /> ;Court of Appeal:The highest level of court in British Columbia, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and all provincial tribunals.<br /> ;covenant:A promise to do or not do a particular thing.<br /> ;cross-examination:The portion of a trial where a party asks questions of a witness presented by the other party to challenge his or her evidence and truthfulness. The questions asked of the witness must be relevant to the issues and may be "leading," that is, the question may suggest the answer.<br /> ;custody:In family law, this term traditionally refers party with whom the child lives and at whose home the child eats and sleeps for the majority of the time. The concept of "primary residence" is overtaking this meaning of custody, particularly in circumstances where the parties share joint custody and joint guardianship of the children.<br /> ==D==<br /> ;damages:An award of money payable by one party to the other, usually as compensation for loss or harm suffered as a result of the other party's actions or failures to act. In family law, damages may be awarded to remedy a tort claim or a breach of contract.<br /> ;debt:A sum of money or an obligation owed by one person to another. A "debtor" is the person responsible for paying a debt. a "creditor" is the person to whom the money is owed.<br /> ;decision:In law, a judge's conclusion after hearing the argument and considering the evidence presented at a trial or an application. a judgment. A judge's decision will include both his or her conclusions about the relief claimed as well as his or her findings of fact. A written decision is called the judge's Reasons for Judgment.<br /> ;declaration:A pronouncement of the court as to a fact or a state of affairs. This should not be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something.<br /> ;deem:To make an assumption that one thing follows from another. a presumption of a fact based on proof of other facts.<br /> ;de facto:A Latin phrase meaning "in fact."<br /> ;default:A failure to do something which is either optional or mandatory, such as a failure to reply to an application or a claim within the time limits set out in the rules of court.<br /> ;default Judgment:A judgment obtained by a claimant following the respondent's failure to reply to his or her claim within the proper time.<br /> ;defence:A reply, rebuttal or answer to a claim. A respondent's defence may attack the claimant's claim on the truth of the facts alleged by the claimant, the law applicable to the case, or both.<br /> ;denial:Defending a claim by denying the truth of a fact supporting the claim. a rejection of the truth of facts alleged.<br /> ;de novo:A Latin phrase meaning "anew;" renewed, from the beginning. An application or trial heard de novo is heard for a second time without considering the result of the first hearing.<br /> ;desertion:The continued absence of one spouse from cohabitation with the other. prolonged separation between spouses. This is an old ground of divorce which has been replaced in the modern ''Divorce Act'' with simple separation for a period of not less than one year.<br /> ;desk order divorce:A process in which a divorce, with or without corollary relief, is obtained following the failure of the respondent to file a Response to Family Claim. A desk order divorce does not require an oral hearing and is the cheapest way to obtain a divorce order.<br /> ;disability:In law, the inability to do certain things, like entering into a contract or bringing a law suit. Legal disabilities include insanity and being under the age of majority.<br /> ;discovery:Disclosure and production are a stage of the litigation process in which each party advises the other of the documents in his or her possession which bear on the issues in the action, and those documents are exchanged. Discovery means the formal examination of a party under oath, outside of court, about the matters at issue in an action.<br /> ;dismiss:In law, a judge's decision to end a claim or dismiss an action with or without trial. An application or appeal which is dismissed has been heard and rejected by the court.<br /> ;divorce:The legal termination of a valid marriage by an order of the court, ending the marital relationship and the conjugal obligations of each spouse toward the other.<br /> ;domicile:The place where one has one's permanent home, where one lives most of the time. sometimes the place where one intends to have a permanent home. A party's domicile may have an impact on the jurisdiction of the court to hear an action or deal with certain claims made in an action.<br /> ;dower:The entitlement of a wife to a portion on her husband's estate on his death. This common law entitlement has been extinguished and is replaced by certain provisions of the ''Estate Administration Act'' and the ''Wills Variation Act'', which grant both spouses certain rights on the death of the other.<br /> ;dowry:In some cultures, the property and/or chattels brought into the marriage by the wife, or, the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and claims for dowry will not normally be enforceable.<br /> ;draft:In law, a non-final version of a document. an order prepared following judgment to be submitted to the court for its approval. To prepare or "draw" a legal document.<br /> ;duress:Forcing someone to do something, usually by psychological or emotional pressure, which that person is not obligated to do.<br /> ;duty:A legal obligation to do or not do something, whether under the common law or pursuant to legislation.<br /> <br /> ==E==<br /> ;encumbrance:A debt secured against property, such that a default on repayment gives the creditor a right to possess or sell the encumbered property.<br /> ;enticement:In family law, intentionally causing a wife to leave her husband or intentionally interfering with a married couple's consortium, an old common law cause of action. The ''Family Relations Act'' expressly forbids legal actions based on enticement.<br /> ;error of law:A ground of appeal claiming that the trial judge did not apply the law correctly in reaching his or her decision.<br /> ;estate:The sum of the property owned by a person or in which he or she has an interest.<br /> ;evidence:Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence.<br /> ;examination-in-chief:The portion of a trial where a party asks questions of a witness they have presented to elicit evidence of certain facts. The questions asked of the witness cannot be "leading," that is, the answer cannot be suggested in the question.<br /> ;examination for discovery:The cross-examination of a party under oath about the matters at issue in the action conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, under certain circumstances, be used at trial.<br /> ;execute:In contract law, to complete or accomplish. to complete the legal formalities necessary to give a document validity. One executes a separation agreement, for example, by signing it in the presence of a witness.<br /> ;ex parte:A Latin phrase meaning "on behalf of one party," but used to describe applications being made without notice being given to the other party. Such applications are only heard in urgent situations, for example, if a spouse has threatened to flee with the children or hide assets.<br /> ;expert evidence:Opinion evidence given by an expert at trial. Opinion evidence is evidence about what someone thinks or believes rather than something known as a fact, and is generally not admissible at trial except from experts. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists.<br /> <br /> ==F==<br /> ;family law agreement:An agreement between two persons involved in a spousal or parental relationship which deals with their respective rights and obligations to one another and which the parties expect will be enforceable in court. These agreements include marriage agreements (prenuptial agreements), cohabitation agreements (living together agreements) and separation agreements.<br /> ;family assets:Assets owned by either or both married spouses and subject to division between them on the breakdown on their marriage. An asset owned solely by one spouse may be found to be a family asset where it is used for a family purpose. Family assets are presumed to be divided between the spouses on an equal basis under the Family Relations Act.<br /> ;Financial Statement:A court form (Form F8 in the Supreme Court and Form 4 in the Provincial Court) used to set out a party's income, expenses, assets and debts on the party's oath or affirmation.<br /> ;finding:A conclusion made by a judge, determining a point of law or a disputed fact.<br /> ;finding of fact:A judge's conclusion about the facts of a case, made after hearing all the evidence.<br /> ;forum:In law, a court or level of court, sometimes used in reference to the court's jurisdiction.<br /> ;free and clear title:Real property owned without encumbrances on the title and without any other debt or obligation attached to the property.<br /> ;frustration:In contract law, an inability to complete or fulfill a contract, whether intentional or unintentional. the intentional intereference with the rights of another under a contract or court order. A contract which cannot be completed or fulfilled is said to be "frustrated."<br /> <br /> ==G==<br /> ;gainful employment:Steady work for pay. In family law, a dependant spouse usually has a duty to find gainful employment and become self-sufficient following the breakdown of a relationship. Under certain circumstances, a failure to find gainful employment may justify the termination of spousal support.<br /> ;gift:A voluntary transfer of property from one person to another, without expectation of payment or reward. True gifts do not usually qualify as family assets, making them exempt from division between spouses.<br /> ;good faith:Acting in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase ''bona fide''.<br /> ;guardian:A person charged with the care of someone under a legal disability. In family law, a guardian has the right to instruct and receive information from the people involved with the care of his or her child, such as doctors and teachers, the obligation to make arrangements for the necessities of the child’s life, and the right and obligation to make important decisions about how that child grows up.<br /> ;guardianship:In family law, being charged with the legal care of a child's person and estate.<br /> <br /> ==H==<br /> ;hearing:In law, a proceeding before a judge to determine questions of law and/or questions of fact, whether the hearing of an application or the hearing of a trial.<br /> ;hearsay:Evidence of which a witness has no direct, personal knowledge. For example, saying that "Pierre told me that Mitsou trashed the car" or "Mitsou told me she trashed the car." Hearsay evidence is not admissible at trial as a witness can only properly give evidence of those facts of which he or she has direct knowledge. Hearsay evidence may be allowed on interim applications, as long as the source of the hearsay information is identified.<br /> ;heirs:In estate law, the people intended or expected to receive property or other benefit under a will. a person's direct lineal descendants.<br /> <br /> ==I==<br /> ;indemnify:To repair harm or loss suffered by another.<br /> ;infant:A person not yet of the age of majority. a minor. a child.<br /> ;inheritance:Real or personal property received as a result of the provisions of a will. Inheritances do not usually qualify as family assets subject to division between spouses.<br /> ;injunction:An order that someone not do or cease doing a thing. a restraining order. In family law, injunctions are often sought to stop someone from doing something with the children, disposing of assets or harassing someone else.<br /> ;in loco parentis:A Latin phrase meaning "in the place of a parent;" acting as a parent in the place of the child's natural parent or intending to stand in the place of that parent. A person found to be in loco parentis to a child may be responsible to pay child support for that child.<br /> ;in personam:A Latin phrase meaning "against the person;" a right against a person as opposed to a right involving a thing.<br /> ;in rem:A Latin phrase meaning "against the thing;" refers to a right against objects or property rather against a person.<br /> ;inspection of documents:The right of a party to an action to look at and copy documents held by the other party which relate to issues in the action. part of the discovery and production process.<br /> ;instructions:In law, the directions given by a client to his or her lawyer about the conduct of a case.<br /> ;interim application:An application made after the commencement of a legal action but before its conclusion, usually for temporary relief until the final resolution of the matter at trial or by settlement before trial. In family law, interim applications are useful to establish parenting arrangements and support obligations on a quick, although temporary, basis.<br /> ;interim order:Any order made prior to the final resolution of a legal action at trial or by settlement before trial. a temporary, rather than permanent or final order.<br /> ;interlocutory:Literally, "between speakings;" refers to interim applications brought or orders made after the commencement of a legal action but before its conclusion.<br /> ;interrogatories:Written questions presented by one party which must be answered by other party in the form of an affidavit. part of the discovery process.<br /> ;intestate:Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Estate Administration Act''.<br /> ;in the alternative:A phrase used to indicate secondary relief or a secondary ground of relief, usually presented as an option to the primary relief or primary ground of relief claimed. As in "I'd like your Mustang, but, in the alternative, I'll take your Pinto."<br /> ;in trust:A phrase describing property held by one person for the benefit of another person who is ultimately eneitled to the property. Money held in trust is held in a lawyer's bank account on the lawyer's promise not to use that money except as may be agreed.<br /> <br /> ==J==<br /> ;joint account:A bank account shared by more than one person normally with an equal entitlement to deposit or withdraw, with or without the consent of the other account holders.<br /> ;joint custody:A situation in which both parents together have custody of their children.<br /> ;joint guardianship:A situation in which both parents together have guardianship of their children. Should one parent die in such circumstances, the other parent becomes the sole guardian of the children.<br /> ;joint tenancy:A form of ownership where two or more people co-own a thing. Each joint tenant’s interest in the property is not distinct, that is, it cannot be separated out from the other tenants' interests. When one joint tenant dies, the other tenants continue to own the whole of the property between them.<br /> ;judge:A person appointed by either the federal or provincial government, with the authority to hear and decide legal actions in an impartial manner, independent from influence by the government, whose decisions are binding upon the parties to an action.<br /> ;final judgment:A decision which completely and finally determines some or all of the issues in a legal action, following which there is no other recourse open to a dissatisfied party except an appeal.<br /> ;jurisdiction:This word has a number of meanings such as 1) the authority of the court to hear an action and make orders, 2) the limits within which a court must operate, 3) the limits of the authority of a particular judicial official, 4) the authority of a government to make legislation as determined by the constitution, and 5) the geographic location of a court.<br /> ;justice of the peace:A court official appointed by the provincial government with a defined decision-making authority.<br /> <br /> ==L==<br /> ;Land Title and Survey Authority:The department of the provincial government responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may lie against a parcel of property.<br /> ;lawyer's fees:The fees a lawyer charges his or her client pursuant to their retainer agreement, for the lawyer's services. Most lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include disbursements, which are costs incurred by the lawyer for such things as couriers, filing documents in court and photocopying.<br /> ;leading questions:Question asked of a witness which suggest their answers, normally asked during cross-examination, such as "You've never worked a day in your life, have you?"<br /> ;lease:An agreement such that the owner of a piece of property (a car or an apartment, for example) gives up the right to occupy and use that property in exchange for something else like money. A "lessor" is the person who retains ownership of the property. a "lessee" is the person who gets the right of possession in exchange for payments to the lessor.<br /> ;legal description:With respect to real property, the full formal identification of a particular piece of property by its lot number, district lot number, plan number and land district, rather than by its street address.<br /> ;legislate:To create, amend and revoke written laws governing things, people and places. a right of the provincial and federal governments to pass and rescind laws derived from the Constitution.<br /> ;legislation:An act, a statute. A written law created by a government.<br /> ;litigant:A party to a legal action, such as a Claimant or Respondent in the Supreme Court, or an Applicant or Respondent in the Provincial Court.<br /> ;lay litigant:A party to a legal action who is not represented by a lawyer and acts on his or her own behalf. "Lay" in this context means amateur.<br /> <br /> ==M==<br /> ;maintenance:In family law, usually refers to payments made by one party to the other to defray that person's daily living expenses or for the living expenses of the a child. also known as support.<br /> ;marriage:A legal and emotional relationship between two people, solemnized by a religious functionary or marriage commissioner, giving rise to certain mutual rights, benefits and obligations.<br /> ;marriage-like relationship:A quality of a romantic relationship indicating the nature of their parties' committment to each other as lovers and partners. A legal requirement for a couple to be considered common-law spouses. A couple in marriage-like relationship live together, share chores together, describe themselves as a couple, and their friends and family think of them as a committed couple.<br /> ;master:A provincially-appointed judicial officer with the limited authority deal with certain issues and certain court processes, including interim applications.<br /> ;material:In law, relevant, important. A "material fact" is a fact relevant to a claim.<br /> ;matrimonial home:In family law, the dwelling occupied by a family as their home.<br /> ;mediation:A dispute resolution process in which a third party with special training, a mediator, helps the parties to a dispute find a resolution to that dispute.<br /> ;memorandum of understanding:A document setting out the essential terms of an agreement reached between two or more people, often used as a guide to the negotiation of a final, more detailed and more complete agreement.<br /> ;minutes of settlement:A document setting out the essential terms of an agreement or settlement reached between two or more people, produced after negotiations and signed by the parties and their lawyers to record the agreements reached to date. Minutes of Settlement are normally used as the foundation of a future final order or agreement, and are often attached to that order or agreement as a schedule.<br /> ;misrepresentation:Acts or words tending to give a false impression as to the true state of affairs.<br /> ;mistake:In contract law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error, including entry into an otherwise binding contract.<br /> ;mortgage:The conditional transfer of ownership in a piece of property to someone else, while retaining possession of the property, to secure a loan. The party to whom the title is given, the mortgagee, usually a bank, is allowed to register the title of the property in his or her name if the person making the transfer, the mortgagor, fails to repay the loan.<br /> ;motion:In law, an application to the court for an order, usually brought after the commencement of an action but before its conclusion following trial or by settlement before trial.<br /> <br /> ==N==<br /> ;natural parent:The biological parent of a child, as distinguished from adoptive parents and stepparents.<br /> ;negotiate:In family law, the process by which a contract or agreement is formed, usually consisting of the mutual compromise of the parties' original positions, through discussion and bargaining, to the extent tolerable by each party.<br /> ;'''non compos mentis''':A Latin phrase meaning "not of sound mind." A person who is ''non compos mentis'' is under a legal disability.<br /> ;notary public:A person authorized to take oaths and affirmations, and execute or certify certain documents. All lawyers are notaries public in addition to being barristers and solicitors.<br /> ;Notice of Appeal:A legal document required by the rules of court which notifies a party of the other party's intent to appeal a decision.<br /> ;Notice of Family Claim (Form F3):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person bringing a family law case, the court the claim will be heard in and the person's Address for Service.<br /> ;Notice of Application (Form F31):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person making an application, the grounds on which that relief is claimed and the date on which the application will be heard.<br /> ;null and void:Invalid. A nullity. Of no legal force and effect. Curiously, null and void mean the same thing.<br /> <br /> ==O==<br /> ;oath:An affirmation of the truth of a statement by one's faith in a god. Someone making an affidavit may give his or her evidence in that affidavit under oath. a witness giving oral evidence may give his or her evidence in court under oath.<br /> ;obligation:A duty at law, whether contractual, moral or legal in origin, to do or not do something.<br /> ;offer:In contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement proposal.<br /> ;offer to settle:A document setting out a formal offer made by one party to the other prior to the trial of an action describing the terms on which the party is prepared to settle the action without trial. Offers to settle can have important consequences, particularly with respect to the award of costs if the offer is close to what the judge decides following trial.<br /> ;officer of the court:Any official of the court, including lawyers, court clerks and judges.<br /> ;omission:A failure to do something, whether intentional or unintentional.<br /> ;order:A mandatory direction of the court, binding upon the parties to a legal action. An "interim order" is a temporary order obtained by an inteirm application. A "final order" is a permanent order and the product of either the trial of the action or the settlement of the parties before trial, following which the only recourse open to a dissatisfied party is to appeal the decision. Orders made with the agreement of the parties are called "consent orders."<br /> ;Ownership:A usually exclusive right to possess and use a thing.<br /> <br /> ==P==<br /> ;the doctrine of paramountcy:The rule that federal legislation on a subject is superior to and takes precedence over any provincial legislation on the same subject.<br /> ;'''parens patriae''':A Latin phrase meaning "parent of the country," the court's inherent jurisdiction to deal with issues concerning persons under legal disabilities.<br /> ;parent:In family law, the natural or adoptive father or mother of a child. may also include stepparents, depending on the circumstances and the applicable legislation.<br /> ;party:In law, a person making or defending an action. someone either asserting a claim in a legal action or subject to a claim made in an action.<br /> ;paternity test:A scientific test performed to determine the parentage of a child, usually performed by DNA testing of the blood or saliva of the alleged parent(s) and the child.<br /> ;peace officer:A person having a duty to enforce the law as a result of his or her employment, including police officers as well as sheriffs, customs officers, and mayors.<br /> ;pecuniary:Relating to money.<br /> ;perjury:Intentionally lying to the court while giving evidence under oath or affirmation. also applies to lying in a sworn document, such as an affidavit. This is an offence.<br /> ;personal property:Chattels, goods. property other than real property.<br /> ;Petition (Form F73):A court document used to commence specific kinds of legal action. The person bringing the action is the Petitioner and the person against whom the action is brought is the petition respondent. An action can only be started by a Petition in certain circumstances. most often actions are started with a Notice of Family Claim.<br /> ;pleadings:A legal document setting out either a claim or a defence to a claim. Usually, the pleadings consist of the Notice of Family Claim, Response to Family Claim and Counterclaim.<br /> ;possession:In law, the right to have the control and use of a thing, but not necessarily the right to own that thing.<br /> ;precedent:This word has a number of meanings, including 1) the historic decisions of the courts, 2) the principle that those decisions are binding on subsequent judges hearing cases of a similar nature or in similar circumstances, and 3) templates or sample documents used to draft a new document.<br /> ;premises:In real property law, a piece of property and a building situated on it, usually, the area of the property surrounding a building on that property. Also, the foundation of a logical argument.<br /> ;'''prima facie''':A Latin phrase meaning "first face," refers to a fact which ought to be obvious.<br /> ;privilege:In law, the duty a lawyer has to keep his or her client's information confidential, including communications between the lawyer and client and advice given to the client. A lawyer cannot reveal privileged communications even to the court, except in certain usual circumstances.<br /> ;proceeding:In law, the whole of the conduct of a legal action, from beginning to end, and all steps in between. may also be used to refer to a specific hearing or trial.<br /> ;proof:Evidence which establishes or tends to establish the truth of a fact. also, the conclusion of a logical argument.<br /> ;'''quantum meruit''':A Latin phrase meaning "the amount of deserved." Refers to payment for a service according to the value of the service rendered.<br /> <br /> ==Q==<br /> ;quash:To set aside or vacate an order or judgment.<br /> ;question of fact:An issue arising where the parties disagree about a material fact relevent to a legal action, when only one party can be right. A court's decision about what the facts of a case are is a "finding of fact."<br /> ;question of law:An issue about which law should be applied in a legal action, or how the law should be applied in the circumstances of a particular action. A court's decision about how the law should be applied to the facts of case or about what the law is in a particular situation is a "finding of law."<br /> <br /> ==R==<br /> ;real property:A piece of land and the buildings on that land. Real property is different from chattels or other personal property because it cannot be moved.<br /> ;rebut:In law, to reply to an argument, a statement of fact or a legal presumption by presenting argument or evidence to the contrary. providing evidence which tends to disturb a presumption.<br /> ;registrar:An officer of the court with the power to make certain decisions, including the terms of a judge's order. also, an officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings.<br /> ;court registry:A central office, located in each judicial district, at which the court files for each legal action brought in that district are maintained, and at which legal documents can be filed, searched and reviewed.<br /> ;regulations:A kind of lesser legislation giving supplemental rules to a particular act. Regulations are created and amended by the government, not the Legislature or Parliament.<br /> ;relief:In law, an order sought by one party to a legal action as set out in his or her pleadings. Where more than one remedy or order is sought, each remedy sought is called a "head of relief."<br /> ;reply:In law, an answer or rebuttal to a claim made or a defence raised by the other party to an action.<br /> ;requisition:A court form (Forms F17, F29 & F35) prescribed by the Supreme Court Family Rules with which a party asks the court registry staff to perform a task (like searching a file) or asks the registrar to make a procedural order (like an order that a party be served substitutionally).<br /> ;residence:The place a person permanently lives. This is different from a person's "domicile" in that a person's residence is more concrete and less changeable in nature. A person's residence can have an impact on the court's authority to hear and decide a legal action.<br /> ;respondent:The person against whom a claim has been brought. Formerly known as the defendant.<br /> ;Response to Family Claim (Form F4):A legal document required by the Supreme Court Family Rules setting out Respondent's position on each of the orders sought by the Claimant in the Notice of Family Claim as well as the Respondent's Address for Service.<br /> ;restraining order:An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of assets, and stopping someone from harassing someone else.<br /> ;resulting trust:In family law, a finding by a court that one party holds property in trust for another as a result of the parties' intention to make a trust. A trust relationship inferred by operation of law.<br /> ;retainer:This word means several things such as 1) the act of hiring of lawyer, 2) the money paid to a lawyer to hire his or her services, and 3) the terms and extent of a lawyer's work on behalf of a client.<br /> ;review:In law, the re-examination of a state of affairs, an order or an agreement, usually to determine whether the terms of an agreement or order are still appropriate. A separation agreement or an order may state that a particular term is "reviewable" at a certain date. On that date the circumstances of each party are re-examined to determine whether the term remains appropriate, and whether the term should be cancelled, changed or let alone.<br /> ;rules of court:A set of codified guidelines governing the court process and litigation generally, and providing the official court forms required. The rules of court are particular to each level of court.<br /> <br /> ==S==<br /> ;sale:An agreement to transfer the ownership of property from one person to another in return for something else, like money or another property.<br /> ;separation agreement:A contract between spouses, partners or parents, intended to resolve all or some of the issues outstanding between them as a result of the breakdown of their relationship, and intended to guide the parties in their dealings with one another thereafter.<br /> ;personal service:The personal delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by physically handing the document to the party and verifying the recipient's identity.<br /> ;ordinary service:The delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by transmitting the document to one of the party's Addresses for Service.<br /> ;Affidavit of Service (Form F15):An affidavit in a form prescribed by the Supreme Court Family Rules sworn by the person who has personally served someone with legal documents, stating that the party was served and describing the circumstances in which service was accomplished.<br /> ;substituted service:Service in a way other than service as prescribed by the rules of court, in the manner and on the conditions imposed by an order of the court.<br /> ;settlement:A resolution of a legal action or of one or more matters at issue in that action, made by the agreement of the parties to that action, as opposed to resolution of the matter by the court following a trial or hearing.<br /> ;spouse:According to the ''Divorce Act'', a spouse is a person who is legally married to someone else, whether of the same or a different gender. Under the ''Family Relations Act'', this term also includes unmarried couples who have lived together in a marriage-like relationship for a period of at least two years.<br /> ;spousal support:Money paid by one spouse to the other to help cover the recipient's living expenses. Also called alimony and maintenance.<br /> ;'''stare decisis''':A Latin phrase meaning "standing by the thing decided," refers to the common law principle that courts are obliged to follow the decisions of the courts before them on the same subjects.<br /> ;'''status quo''':A Latin phrase meaning "the state that was," refers to whatever circumstances or conditions previously existed and, usually, had existed for some time.<br /> ;subpoena:A legal document issued either by the court or by a party which compels a witness to attend court to give evidence, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court.<br /> ;suit:A law suit, an action, a court proceeding, a case. A claimant's claim against a respondent.<br /> <br /> ==T==<br /> ;taxation:A hearing in which a client challenges a lawyer's bill and a lawyer proves his or her bill. A taxation hearing is held before a master or a registrar who examines the account to determine whether the account is fair. The master or registrar assesses the bill and issues a Certificate of Fees stating what amount is properly payable by the client or refundable by the lawyer.<br /> ;tenancy in common:A kind of ownership of a property by two or more persons such that each owner has a distinct and severable share in the property. A tenant in common may chose to sell his or her share in that property independently from other owners.<br /> ;testator:In estate law, a person who has made a will used in reference to that will. The delightful feminine form of this word is "testatrix."<br /> ;testimony:A statement made by a witness to a court as evidence, or made in an affidavit, made under oath or affirmation as to the truth of the statement.<br /> ;third party:A person named in an action or joined to an action who is neither the Claimant nor the Respondent. A third party may be joined to an action where the Respondent believes that the person has some responsibility for the cause of action.<br /> ;title:In law, having legal ownership of a thing. a document evincing legal ownership of a thing.<br /> ;trial:The testing of the respective claims and defences of the parties to an action through the presentation of evidence and legal argument at a formal hearing before a judge with the jurisdiction to hear the matter and to make a final, binding determination of the claims.<br /> ;trust:In law, a form of possession in which one person holds, deals with and is responsible for property for the benefit of another. A "trustee" is the person who holds the property in trust for the other person. the "beneficiary" is the person for whom the property is held.<br /> ;trustee:One who holds property in trust for the benefit of another.<br /> <br /> ==U==<br /> ;unjust enrichment:Money or benefits unfairly gained by one person at a corresponding expense or loss to another.<br /> ;unlawful:Acts or omissions made contrary to legislation or the common law.<br /> <br /> ==V==<br /> ;vacate:The setting aside or quashing of a decision or order, sometimes effective on the date of the vacation, sometimes with a retroactive effect as if the original order had never been made.<br /> ;validity of marriage:For a marriage to be valid, the spouses must be: not within the prohibited degrees of consanguinity, over the commmon law age of puberty, unmarried at the time of the marriage, and capable of understanding the meaning of marriage.<br /> <br /> ==W==<br /> ;waive:In law, to give up a right or entitlement. to give up the opportunity to assert a right or enforce an entitlement.<br /> ;waste:In law, intentionally or unintentionally allowing the value of a piece of property to diminish through carelessness, neglect or purposeful harm.<br /> ;will <sup>def</sup>:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;Will:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;witness:A person giving evidence on the person's oath or affirmation as to the truth of the statements made.</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Terminology&diff=556 Terminology 2012-12-24T21:38:34Z

<p>209.17.147.129: /* M */</p> <hr /> <div><div class="noautonum">__TOC__</div><br /> ==A==<br /> ;ab initio:A Latin phrase meaning "from the beginning." A marriage which is unlawful is void ''ab initio'', as if it never happened.<br /> ;abduction:The taking of a person by force or fraud. In family law, the taking of a child contrary to a court order or without the other parent's permission. In certain circumstances, this may also be a criminal offence.<br /> ;abrogate:To revoke or annul. One "abrogates" a contract, like a family agreement, by doing something expressly contrary to the agreement. One party's act of abrogation may not void the agreement, but will give the other party a cause of action.<br /> ;access:A parent's time with their children following the breakdown of the parent's relationship. Access usually refers to the visits of a child with the parent who doesn't have the child's primary residence.<br /> ;account:In law, a lawyer's bill to his or her client. Also, a statement of one person's view of events.<br /> ;Act:A law passed by a government, also called "legislation" or a "statute." Also, the intentional doing of a thing.<br /> ;action:A law suit. or a legal proceeding in which one party sues another for a remedy or specific relief. In family law, an action for divorce is a court proceeding in which the claimant sues the respondent for the relief of an order for the parties' divorce.<br /> ;address for service:The address at which a party must accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addreses for service may include postal addresses, fax numbers and email addresses.<br /> ;adoption:In family law, the act or process of one person taking another person's natural child as his or her own. The child then becomes the adopting parent's legal child as if the child were the adopting parent's natural child, and the child's biological parent loses all rights and obligations with respect to the child.<br /> ;''Adoption Act'':A provincial law dealing with entitlement to adopt and the adoption process.<br /> ;adoptive parent:A person who has formally assumed the status of parent to a child who is not his or her biological offspring. <br /> ;adultery:The act of a married person voluntarily engaging in sexual intercourse with a person other than his or her spouse; cheating; playing around; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act.<br /> ;advance:In family law, this usually refers to one party obtaining a share of his or her portion of the family assets before those assets have been divided, whether following trial or a final settlement of the matter.<br /> ;advocate:A lawyer; sometimes a person other than a lawyer who presents and argues a case in court on behalf of a party to the proceeding. Also, to argue a debated position.<br /> ;affidavit:A legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally under oath. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit about the truth of its contents. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements orally before a judge at trial.<br /> ;affirm:To promise that a statement is true. When someone "swears" to tell the truth, they are considered to be taking an oath on their faith in a god. Affirming is a substitute for swearing something before a god, most often employed where person making the statement is an atheist or under a religious proscription from making oaths.<br /> ;age of majority:The age at which someone becomes a legal adult with the full capacity to act on their own, independent of their parents, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority.<br /> ;agent:In law, someone acting on behalf of someone else, with that person's express permission and normally their express direction.<br /> ;alias:A name by which people know you other than your legal name.<br /> ;alienation:In family law, the actions or statements of a parent which tend to sever, damage or harm the child's relationship with or affections for the other parent.<br /> ;allegation:An assertion that a certain set of facts is true, such as "on Monday, I had soup for lunch" or "Bob drives a blue Camaro." Also called an allegation of fact or a statement of fact.<br /> ;alternative dispute resolution:A phrase referring to processes for the resolution of disputes outside the court system, including mediation, negotiation and collaborative law. In family law, the purpose of ADR is to offer a less conflict-oriented and less expensive way to resolve a dispute than litigation.<br /> ;amend:To change or alter a pleading or document which has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "Amended Counterclaim."<br /> ;amicus curiae:A Latin phrase meaning "friend of the court." Usually refers to a lawyer who does not act for any of the parties and assists or brings relevant information to the attention of the presiding judge.<br /> ;annulment:A declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occured. <br /> ;answer:A response to a claim or an allegation of fact. Usually refers to legal documents used to reply to the allegations or claims of another party, such as a Response to Family Claim, an Application Response or a Reply.<br /> ;appeal:An application to a court for a review of the decision of a lower court and, hopefully, the reversal of that decision. A decision of a judge of the Supreme Court of British Columbia is, for example, appealed to the Court of Appeal for British Columbia.<br /> ;applicant:The party to an action who brings an application to court in the course of that action, usually an application for an interim order.<br /> ;application:A request to the court that it make an order for specific relief, usually on an interim or temporary basis.<br /> ;application respondent:The party to an action against whom an application has been brought in the course of that action. the party replying to the applicant's application, usually an application for an interim order.<br /> ;Application Response (Form F32):A legal document required by the Supreme Court Family Rules setting out the application respondent's position on the relief claimed in an application and the grounds on which that relief is opposed.<br /> ;arbitrator:A person selected by the parties to a dispute to resolve their dispute outside the court process and to whom the parties give the authority to impose a settlement.<br /> ;arbitration:A dispute resolution process subject to the principles of natural justice in which the parties pick the person who will resolve their dispute and agree to be bound by the arbitrator's decision.<br /> ;argument:In law, persuasion by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence about the facts of a case, or to a written brief of argument.<br /> ;arrears:Money owing for child support or spousal support as a result of an agreement or a court order which has not been paid.<br /> ;assess:To determine the value or amount of something. A lawyer's bill may be assessed by a registrar to determine the proper amount the client should pay. a piece of property may be "assessed" to determine its likely sale price.<br /> ;assign:To transfer an interest or right in something, such as property or a cause of action, to someone else.<br /> <br /> ==B==<br /> ;bad faith:Intentionally misleading someone else, whether by doing or not doing something. acting in a manner contrary to one's actual intention. an intentional failure to act honestly and openly. Also called ''male fides''.<br /> ;barrister & solicitor:A lawyer. a person licenced to practice law in a particular jursidiction. In England barristers do trial work and solicitors draft legal documents. In Canada, lawyers are both barristers and solicitors.<br /> ;beneficiary:The person for whose benefit a trustee holds property. the recipient or intended recipient of property passed in a will.<br /> ;bill:A lawyer's statement of account. Also, draft legislation presented by government to the Legislature or Parliament for approval.<br /> ;binding:A requirement or obligation to honour and abide by a contract or order of the court. for example, a judge's order is binding in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be followed by a lower court.<br /> ;bona fide:A Latin phrase meaning "in good faith;" doing something honestly and openly, without the intention of misleading or causing harm to someone else.<br /> ;breach of contract:Acting or failing to act in a manner contrary to the terms of the agreement. In family law, a breach of a term of a family agreement may give rise to a cause of action for the other party, but the breach is unlikely to allow the other party to treat the agreement as if it were cancelled or void.<br /> ;brief:A written argument. a memorandum of law. A brief is usually presented to a judge as a summary of an argument or a summary of the law on a particular issue.<br /> ;business assets:In family law, property owned by a spouse's company or corporation and not used for family purposes. Business assets are not usually subject to division between spouses, unlike family assets.<br /> ==C==<br /> ;Charter of Rights and Freedoms:A part of the ''Constitution Act, 1981'' which sets out the fundamental rights and freedoms shared by all Canadians, including the freedoms of religion and expression and the rights to life and liberty. Neither the federal nor the provincial governments can pass laws or act in ways contrary to the ''Charter''. Certain sections of the ''Charter'', particularly the portions dealing with equality rights, have a special importance for family law. For example, the way that the provincial ''Family Relations Act'' treats unmarried and married couples differently for the purposes of dividing their assets may be contrary to equality guarantees set out in the ''Charter''.<br /> ;case:A law suit. an action. a cause of action. an instance of litigation. Also refers to a historic decision of the court.<br /> ;certificate of pending litigation (CPL):A document filed in the Land Title and Survey Authority against the title of a piece of real property stating that the property is the subject of litigation and that ownership of the property may change as a result. In family law, a CPL is used to protect the interest of a spouse in a piece of property by prenting the property from being sold or remortgaged.<br /> ;chattel:An item of personal property. Distinguished from real property in the sense that chattels can be picked up and taken from place to place, but real property cannot.<br /> ;child support:Money paid by one parent to the other to help defray a child's living expenses. Also known as maintenance and palimony.<br /> ;Child Support Guidelines:A federal regulation which sets out the amount of child support a party must pay based on the party's income and the number of children involved and provides rules about the calculation of child support. The tables that set out the amount of support payable differ from province to province.<br /> ;claim:The assertion of a legal right to something, whether to an order or to a thing. the relief sought by one party against the other.<br /> ;claimant:The person who starts a legal action seeking orders against another party, the respondent. Formerly known as the plaintiff.<br /> ;clear title:Ownership of property free of any debt registered against the property. For example, owning a piece of land without a mortgage, or owning a car without a car loan.<br /> ;coercion:The use of force or intimidation to compel someone to do something. interference with another person's freedom of choice. For example, saying "sign this separation agreement or you'll never see your children again."<br /> ;cohabitation:Living with another person in a "marriage-like relationship" while legally unmarried. shacking up. living in sin. playing house.<br /> ;collusion:An agreement to do something with another person towards an illegal goal.<br /> ;common law:This phrase has a number of different meanings such as 1) a legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, 2) the system of justice used in non-criminal cases in all provinces except Quebec, and 3) the legal status of an unmarried couple who qualify as "spouses" under any particular law, such as the ''Family Relations Act''.<br /> ;competent:In law, having the capacity or ability or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of his or her evidence. A court which has competent jurisdiction has the authority to deal with the issues in a case and has authority over the parties to that case.<br /> ;conclusion of fact:A judge's decisions as to what the facts of a case are, based on the evidence he or she has heard and his or her evaluation of the credibility of the witnesses giving that evidence.<br /> ;conclusion of law:A judge's decision about what law applies in a particular case and his or her conclusion about how that law should be applied.<br /> ;concur:To agree.<br /> ;concurrent:Happening or existing at the same time. Two courts of "concurrent jurisdiction," for example, each have the jurisdiction to hear the same case and deal with the same issues.<br /> ;condonation:Forgiving a wrongful act. In family law, usually refers to the forgiving of an act of adultery or cruelty and the continuation of the parties' relationship as it was before.<br /> ;conjugal rights:A quaint and somewhat outdated idea describing a spouse's right to enjoy the benefits of married life, including the comforts of living with his or her spouse, sharing meals, emotional comfort and sympathy, mutual confidence and privacy, sex and so forth.<br /> ;connivance:Causing or permitting a wrongful act. In family law, usually refers to conspiring toward adultery as a ground of divorce to trick the court into making a divorce order.<br /> ;consanguinity:Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity set out in the ''Marriage (Prohibited Degrees) Act''.<br /> ;consent:Agreement. making a choice of one's own free will after giving the matter thought.<br /> ;consent order:A court order that all parties to an action agree the court should make. Consent orders may be interim or final.<br /> ;consortium:The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other.<br /> ;conspiracy:The agreement and intention of two or more people to do an unlawful act, or to do a lawful act by unlawful means. A "conspirator" is a party to a conspiracy.<br /> ;constitution:The rules which set out the political and legal organization of a state. The power and authority of the government, the legislature and the court stem from the constitution. In Canada, there are two primary constitutional documents, the ''Constitution Act, 1867'' and the ''Constitution Act, 1982''. The ''Charter of Rights and Freedoms'' is part of the ''Constitution Act, 1982''.<br /> ;construction:In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one parent "will have the children on Monday, Tuesday and Friday" but didn't say anything about the other parent, the agreement would likely be constructed to mean that the other parent would have the children on the days not mentioned.<br /> ;constructive trust:In family law, a trust relationship imposed to remedy the unjust enrichment of one party.<br /> ;contempt of court:Doing something or failing to do something which impairs the administration of justice or respect for the court’s authority. For example bribing a witness, disobeying a court order or misleading the court. Contempt of court is a civil offence as well as a criminal offence.<br /> ;contract:An agreement by two or more people which gives them enforceable obligations towards each other, usually in writing. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must change hands.<br /> ;contract law:The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are not always applicable to family law agreements.<br /> ;corollary relief:In an action for an order for divorce this term refers to all relief apart from the divorce order. For example, one might sue for a divorce as well as custody of the children. the part of the action relating to custody is the corollary relief.<br /> ;costs:A party's legal expenses stemming from a legal action, calculated under the rules of court. A party's costs are not the same as his or her lawyer's account. The party to an action who is more successful than the other is usually awarded his or her costs of the action.<br /> ;Counterclaim (Form F5):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a Respondent against a Claimant.<br /> ;Court of Appeal:The highest level of court in British Columbia, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and all provincial tribunals.<br /> ;covenant:A promise to do or not do a particular thing.<br /> ;cross-examination:The portion of a trial where a party asks questions of a witness presented by the other party to challenge his or her evidence and truthfulness. The questions asked of the witness must be relevant to the issues and may be "leading," that is, the question may suggest the answer.<br /> ;custody:In family law, this term traditionally refers party with whom the child lives and at whose home the child eats and sleeps for the majority of the time. The concept of "primary residence" is overtaking this meaning of custody, particularly in circumstances where the parties share joint custody and joint guardianship of the children.<br /> ==D==<br /> ;damages:An award of money payable by one party to the other, usually as compensation for loss or harm suffered as a result of the other party's actions or failures to act. In family law, damages may be awarded to remedy a tort claim or a breach of contract.<br /> ;debt:A sum of money or an obligation owed by one person to another. A "debtor" is the person responsible for paying a debt. a "creditor" is the person to whom the money is owed.<br /> ;decision:In law, a judge's conclusion after hearing the argument and considering the evidence presented at a trial or an application. a judgment. A judge's decision will include both his or her conclusions about the relief claimed as well as his or her findings of fact. A written decision is called the judge's Reasons for Judgment.<br /> ;declaration:A pronouncement of the court as to a fact or a state of affairs. This should not be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something.<br /> ;deem:To make an assumption that one thing follows from another. a presumption of a fact based on proof of other facts.<br /> ;de facto:A Latin phrase meaning "in fact."<br /> ;default:A failure to do something which is either optional or mandatory, such as a failure to reply to an application or a claim within the time limits set out in the rules of court.<br /> ;default Judgment:A judgment obtained by a claimant following the respondent's failure to reply to his or her claim within the proper time.<br /> ;defence:A reply, rebuttal or answer to a claim. A respondent's defence may attack the claimant's claim on the truth of the facts alleged by the claimant, the law applicable to the case, or both.<br /> ;denial:Defending a claim by denying the truth of a fact supporting the claim. a rejection of the truth of facts alleged.<br /> ;de novo:A Latin phrase meaning "anew;" renewed, from the beginning. An application or trial heard de novo is heard for a second time without considering the result of the first hearing.<br /> ;desertion:The continued absence of one spouse from cohabitation with the other. prolonged separation between spouses. This is an old ground of divorce which has been replaced in the modern ''Divorce Act'' with simple separation for a period of not less than one year.<br /> ;desk order divorce:A process in which a divorce, with or without corollary relief, is obtained following the failure of the respondent to file a Response to Family Claim. A desk order divorce does not require an oral hearing and is the cheapest way to obtain a divorce order.<br /> ;disability:In law, the inability to do certain things, like entering into a contract or bringing a law suit. Legal disabilities include insanity and being under the age of majority.<br /> ;discovery:Disclosure and production are a stage of the litigation process in which each party advises the other of the documents in his or her possession which bear on the issues in the action, and those documents are exchanged. Discovery means the formal examination of a party under oath, outside of court, about the matters at issue in an action.<br /> ;dismiss:In law, a judge's decision to end a claim or dismiss an action with or without trial. An application or appeal which is dismissed has been heard and rejected by the court.<br /> ;divorce:The legal termination of a valid marriage by an order of the court, ending the marital relationship and the conjugal obligations of each spouse toward the other.<br /> ;domicile:The place where one has one's permanent home, where one lives most of the time. sometimes the place where one intends to have a permanent home. A party's domicile may have an impact on the jurisdiction of the court to hear an action or deal with certain claims made in an action.<br /> ;dower:The entitlement of a wife to a portion on her husband's estate on his death. This common law entitlement has been extinguished and is replaced by certain provisions of the ''Estate Administration Act'' and the ''Wills Variation Act'', which grant both spouses certain rights on the death of the other.<br /> ;dowry:In some cultures, the property and/or chattels brought into the marriage by the wife, or, the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and claims for dowry will not normally be enforceable.<br /> ;draft:In law, a non-final version of a document. an order prepared following judgment to be submitted to the court for its approval. To prepare or "draw" a legal document.<br /> ;duress:Forcing someone to do something, usually by psychological or emotional pressure, which that person is not obligated to do.<br /> ;duty:A legal obligation to do or not do something, whether under the common law or pursuant to legislation.<br /> <br /> ==E==<br /> ;encumbrance:A debt secured against property, such that a default on repayment gives the creditor a right to possess or sell the encumbered property.<br /> ;enticement:In family law, intentionally causing a wife to leave her husband or intentionally interfering with a married couple's consortium, an old common law cause of action. The ''Family Relations Act'' expressly forbids legal actions based on enticement.<br /> ;error of law:A ground of appeal claiming that the trial judge did not apply the law correctly in reaching his or her decision.<br /> ;estate:The sum of the property owned by a person or in which he or she has an interest.<br /> ;evidence:Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence.<br /> ;examination-in-chief:The portion of a trial where a party asks questions of a witness they have presented to elicit evidence of certain facts. The questions asked of the witness cannot be "leading," that is, the answer cannot be suggested in the question.<br /> ;examination for discovery:The cross-examination of a party under oath about the matters at issue in the action conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, under certain circumstances, be used at trial.<br /> ;execute:In contract law, to complete or accomplish. to complete the legal formalities necessary to give a document validity. One executes a separation agreement, for example, by signing it in the presence of a witness.<br /> ;ex parte:A Latin phrase meaning "on behalf of one party," but used to describe applications being made without notice being given to the other party. Such applications are only heard in urgent situations, for example, if a spouse has threatened to flee with the children or hide assets.<br /> ;expert evidence:Opinion evidence given by an expert at trial. Opinion evidence is evidence about what someone thinks or believes rather than something known as a fact, and is generally not admissible at trial except from experts. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists.<br /> <br /> ==F==<br /> ;family law agreement:An agreement between two persons involved in a spousal or parental relationship which deals with their respective rights and obligations to one another and which the parties expect will be enforceable in court. These agreements include marriage agreements (prenuptial agreements), cohabitation agreements (living together agreements) and separation agreements.<br /> ;family assets:Assets owned by either or both married spouses and subject to division between them on the breakdown on their marriage. An asset owned solely by one spouse may be found to be a family asset where it is used for a family purpose. Family assets are presumed to be divided between the spouses on an equal basis under the Family Relations Act.<br /> ;Financial Statement:A court form (Form F8 in the Supreme Court and Form 4 in the Provincial Court) used to set out a party's income, expenses, assets and debts on the party's oath or affirmation.<br /> ;finding:A conclusion made by a judge, determining a point of law or a disputed fact.<br /> ;finding of fact:A judge's conclusion about the facts of a case, made after hearing all the evidence.<br /> ;forum:In law, a court or level of court, sometimes used in reference to the court's jurisdiction.<br /> ;free and clear title:Real property owned without encumbrances on the title and without any other debt or obligation attached to the property.<br /> ;frustration:In contract law, an inability to complete or fulfill a contract, whether intentional or unintentional. the intentional intereference with the rights of another under a contract or court order. A contract which cannot be completed or fulfilled is said to be "frustrated."<br /> <br /> ==G==<br /> ;gainful employment:Steady work for pay. In family law, a dependant spouse usually has a duty to find gainful employment and become self-sufficient following the breakdown of a relationship. Under certain circumstances, a failure to find gainful employment may justify the termination of spousal support.<br /> ;gift:A voluntary transfer of property from one person to another, without expectation of payment or reward. True gifts do not usually qualify as family assets, making them exempt from division between spouses.<br /> ;good faith:Acting in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase ''bona fide''.<br /> ;guardian:A person charged with the care of someone under a legal disability. In family law, a guardian has the right to instruct and receive information from the people involved with the care of his or her child, such as doctors and teachers, the obligation to make arrangements for the necessities of the child’s life, and the right and obligation to make important decisions about how that child grows up.<br /> ;guardianship:In family law, being charged with the legal care of a child's person and estate.<br /> <br /> ==H==<br /> ;hearing:In law, a proceeding before a judge to determine questions of law and/or questions of fact, whether the hearing of an application or the hearing of a trial.<br /> ;hearsay:Evidence of which a witness has no direct, personal knowledge. For example, saying that "Pierre told me that Mitsou trashed the car" or "Mitsou told me she trashed the car." Hearsay evidence is not admissible at trial as a witness can only properly give evidence of those facts of which he or she has direct knowledge. Hearsay evidence may be allowed on interim applications, as long as the source of the hearsay information is identified.<br /> ;heirs:In estate law, the people intended or expected to receive property or other benefit under a will. a person's direct lineal descendants.<br /> <br /> ==I==<br /> ;indemnify:To repair harm or loss suffered by another.<br /> ;infant:A person not yet of the age of majority. a minor. a child.<br /> ;inheritance:Real or personal property received as a result of the provisions of a will. Inheritances do not usually qualify as family assets subject to division between spouses.<br /> ;injunction:An order that someone not do or cease doing a thing. a restraining order. In family law, injunctions are often sought to stop someone from doing something with the children, disposing of assets or harassing someone else.<br /> ;in loco parentis:A Latin phrase meaning "in the place of a parent;" acting as a parent in the place of the child's natural parent or intending to stand in the place of that parent. A person found to be in loco parentis to a child may be responsible to pay child support for that child.<br /> ;in personam:A Latin phrase meaning "against the person;" a right against a person as opposed to a right involving a thing.<br /> ;in rem:A Latin phrase meaning "against the thing;" refers to a right against objects or property rather against a person.<br /> ;inspection of documents:The right of a party to an action to look at and copy documents held by the other party which relate to issues in the action. part of the discovery and production process.<br /> ;instructions:In law, the directions given by a client to his or her lawyer about the conduct of a case.<br /> ;interim application:An application made after the commencement of a legal action but before its conclusion, usually for temporary relief until the final resolution of the matter at trial or by settlement before trial. In family law, interim applications are useful to establish parenting arrangements and support obligations on a quick, although temporary, basis.<br /> ;interim order:Any order made prior to the final resolution of a legal action at trial or by settlement before trial. a temporary, rather than permanent or final order.<br /> ;interlocutory:Literally, "between speakings;" refers to interim applications brought or orders made after the commencement of a legal action but before its conclusion.<br /> ;interrogatories:Written questions presented by one party which must be answered by other party in the form of an affidavit. part of the discovery process.<br /> ;intestate:Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Estate Administration Act''.<br /> ;in the alternative:A phrase used to indicate secondary relief or a secondary ground of relief, usually presented as an option to the primary relief or primary ground of relief claimed. As in "I'd like your Mustang, but, in the alternative, I'll take your Pinto."<br /> ;in trust:A phrase describing property held by one person for the benefit of another person who is ultimately eneitled to the property. Money held in trust is held in a lawyer's bank account on the lawyer's promise not to use that money except as may be agreed.<br /> <br /> ==J==<br /> ;joint account:A bank account shared by more than one person normally with an equal entitlement to deposit or withdraw, with or without the consent of the other account holders.<br /> ;joint custody:A situation in which both parents together have custody of their children.<br /> ;joint guardianship:A situation in which both parents together have guardianship of their children. Should one parent die in such circumstances, the other parent becomes the sole guardian of the children.<br /> ;joint tenancy:A form of ownership where two or more people co-own a thing. Each joint tenant’s interest in the property is not distinct, that is, it cannot be separated out from the other tenants' interests. When one joint tenant dies, the other tenants continue to own the whole of the property between them.<br /> ;judge:A person appointed by either the federal or provincial government, with the authority to hear and decide legal actions in an impartial manner, independent from influence by the government, whose decisions are binding upon the parties to an action.<br /> ;final judgment:A decision which completely and finally determines some or all of the issues in a legal action, following which there is no other recourse open to a dissatisfied party except an appeal.<br /> ;jurisdiction:This word has a number of meanings such as 1) the authority of the court to hear an action and make orders, 2) the limits within which a court must operate, 3) the limits of the authority of a particular judicial official, 4) the authority of a government to make legislation as determined by the constitution, and 5) the geographic location of a court.<br /> ;justice of the peace:A court official appointed by the provincial government with a defined decision-making authority.<br /> <br /> ==L==<br /> ;Land Title and Survey Authority:The department of the provincial government responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may lie against a parcel of property.<br /> ;lawyer's fees:The fees a lawyer charges his or her client pursuant to their retainer agreement, for the lawyer's services. Most lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include disbursements, which are costs incurred by the lawyer for such things as couriers, filing documents in court and photocopying.<br /> ;leading questions:Question asked of a witness which suggest their answers, normally asked during cross-examination, such as "You've never worked a day in your life, have you?"<br /> ;lease:An agreement such that the owner of a piece of property (a car or an apartment, for example) gives up the right to occupy and use that property in exchange for something else like money. A "lessor" is the person who retains ownership of the property. a "lessee" is the person who gets the right of possession in exchange for payments to the lessor.<br /> ;legal description:With respect to real property, the full formal identification of a particular piece of property by its lot number, district lot number, plan number and land district, rather than by its street address.<br /> ;legislate:To create, amend and revoke written laws governing things, people and places. a right of the provincial and federal governments to pass and rescind laws derived from the Constitution.<br /> ;legislation:An act, a statute. A written law created by a government.<br /> ;litigant:A party to a legal action, such as a Claimant or Respondent in the Supreme Court, or an Applicant or Respondent in the Provincial Court.<br /> ;lay litigant:A party to a legal action who is not represented by a lawyer and acts on his or her own behalf. "Lay" in this context means amateur.<br /> <br /> ==M==<br /> ;def2:definition2<br /> ;maintenance:In family law, usually refers to payments made by one party to the other to defray that person's daily living expenses or for the living expenses of the a child. also known as support.<br /> ;marriage:A legal and emotional relationship between two people, solemnized by a religious functionary or marriage commissioner, giving rise to certain mutual rights, benefits and obligations.<br /> ;marriage-like relationship:A quality of a romantic relationship indicating the nature of their parties' committment to each other as lovers and partners. A legal requirement for a couple to be considered common-law spouses. A couple in marriage-like relationship live together, share chores together, describe themselves as a couple, and their friends and family think of them as a committed couple.<br /> ;master:A provincially-appointed judicial officer with the limited authority deal with certain issues and certain court processes, including interim applications.<br /> ;material:In law, relevant, important. A "material fact" is a fact relevant to a claim.<br /> ;material<sup>def2</sup>:The term for the collective set of all documents, such as court forms, written argument, case authorities, and any exhibits for evidence, submitted by a party in the course of an adjudicative proceeding. <br /> ;material (def3): Third definition test for material<br /> ;matrimonial home:In family law, the dwelling occupied by a family as their home.<br /> ;mediation:A dispute resolution process in which a third party with special training, a mediator, helps the parties to a dispute find a resolution to that dispute.<br /> ;memorandum of understanding:A document setting out the essential terms of an agreement reached between two or more people, often used as a guide to the negotiation of a final, more detailed and more complete agreement.<br /> ;minutes of settlement:A document setting out the essential terms of an agreement or settlement reached between two or more people, produced after negotiations and signed by the parties and their lawyers to record the agreements reached to date. Minutes of Settlement are normally used as the foundation of a future final order or agreement, and are often attached to that order or agreement as a schedule.<br /> ;misrepresentation:Acts or words tending to give a false impression as to the true state of affairs.<br /> ;mistake:In contract law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error, including entry into an otherwise binding contract.<br /> ;mortgage:The conditional transfer of ownership in a piece of property to someone else, while retaining possession of the property, to secure a loan. The party to whom the title is given, the mortgagee, usually a bank, is allowed to register the title of the property in his or her name if the person making the transfer, the mortgagor, fails to repay the loan.<br /> ;motion:In law, an application to the court for an order, usually brought after the commencement of an action but before its conclusion following trial or by settlement before trial.<br /> <br /> ==N==<br /> ;natural parent:The biological parent of a child, as distinguished from adoptive parents and stepparents.<br /> ;negotiate:In family law, the process by which a contract or agreement is formed, usually consisting of the mutual compromise of the parties' original positions, through discussion and bargaining, to the extent tolerable by each party.<br /> ;'''non compos mentis''':A Latin phrase meaning "not of sound mind." A person who is ''non compos mentis'' is under a legal disability.<br /> ;notary public:A person authorized to take oaths and affirmations, and execute or certify certain documents. All lawyers are notaries public in addition to being barristers and solicitors.<br /> ;Notice of Appeal:A legal document required by the rules of court which notifies a party of the other party's intent to appeal a decision.<br /> ;Notice of Family Claim (Form F3):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person bringing a family law case, the court the claim will be heard in and the person's Address for Service.<br /> ;Notice of Application (Form F31):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person making an application, the grounds on which that relief is claimed and the date on which the application will be heard.<br /> ;null and void:Invalid. A nullity. Of no legal force and effect. Curiously, null and void mean the same thing.<br /> <br /> ==O==<br /> ;oath:An affirmation of the truth of a statement by one's faith in a god. Someone making an affidavit may give his or her evidence in that affidavit under oath. a witness giving oral evidence may give his or her evidence in court under oath.<br /> ;obligation:A duty at law, whether contractual, moral or legal in origin, to do or not do something.<br /> ;offer:In contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement proposal.<br /> ;offer to settle:A document setting out a formal offer made by one party to the other prior to the trial of an action describing the terms on which the party is prepared to settle the action without trial. Offers to settle can have important consequences, particularly with respect to the award of costs if the offer is close to what the judge decides following trial.<br /> ;officer of the court:Any official of the court, including lawyers, court clerks and judges.<br /> ;omission:A failure to do something, whether intentional or unintentional.<br /> ;order:A mandatory direction of the court, binding upon the parties to a legal action. An "interim order" is a temporary order obtained by an inteirm application. A "final order" is a permanent order and the product of either the trial of the action or the settlement of the parties before trial, following which the only recourse open to a dissatisfied party is to appeal the decision. Orders made with the agreement of the parties are called "consent orders."<br /> ;Ownership:A usually exclusive right to possess and use a thing.<br /> <br /> ==P==<br /> ;the doctrine of paramountcy:The rule that federal legislation on a subject is superior to and takes precedence over any provincial legislation on the same subject.<br /> ;'''parens patriae''':A Latin phrase meaning "parent of the country," the court's inherent jurisdiction to deal with issues concerning persons under legal disabilities.<br /> ;parent:In family law, the natural or adoptive father or mother of a child. may also include stepparents, depending on the circumstances and the applicable legislation.<br /> ;party:In law, a person making or defending an action. someone either asserting a claim in a legal action or subject to a claim made in an action.<br /> ;paternity test:A scientific test performed to determine the parentage of a child, usually performed by DNA testing of the blood or saliva of the alleged parent(s) and the child.<br /> ;peace officer:A person having a duty to enforce the law as a result of his or her employment, including police officers as well as sheriffs, customs officers, and mayors.<br /> ;pecuniary:Relating to money.<br /> ;perjury:Intentionally lying to the court while giving evidence under oath or affirmation. also applies to lying in a sworn document, such as an affidavit. This is an offence.<br /> ;personal property:Chattels, goods. property other than real property.<br /> ;Petition (Form F73):A court document used to commence specific kinds of legal action. The person bringing the action is the Petitioner and the person against whom the action is brought is the petition respondent. An action can only be started by a Petition in certain circumstances. most often actions are started with a Notice of Family Claim.<br /> ;pleadings:A legal document setting out either a claim or a defence to a claim. Usually, the pleadings consist of the Notice of Family Claim, Response to Family Claim and Counterclaim.<br /> ;possession:In law, the right to have the control and use of a thing, but not necessarily the right to own that thing.<br /> ;precedent:This word has a number of meanings, including 1) the historic decisions of the courts, 2) the principle that those decisions are binding on subsequent judges hearing cases of a similar nature or in similar circumstances, and 3) templates or sample documents used to draft a new document.<br /> ;premises:In real property law, a piece of property and a building situated on it, usually, the area of the property surrounding a building on that property. Also, the foundation of a logical argument.<br /> ;'''prima facie''':A Latin phrase meaning "first face," refers to a fact which ought to be obvious.<br /> ;privilege:In law, the duty a lawyer has to keep his or her client's information confidential, including communications between the lawyer and client and advice given to the client. A lawyer cannot reveal privileged communications even to the court, except in certain usual circumstances.<br /> ;proceeding:In law, the whole of the conduct of a legal action, from beginning to end, and all steps in between. may also be used to refer to a specific hearing or trial.<br /> ;proof:Evidence which establishes or tends to establish the truth of a fact. also, the conclusion of a logical argument.<br /> ;'''quantum meruit''':A Latin phrase meaning "the amount of deserved." Refers to payment for a service according to the value of the service rendered.<br /> <br /> ==Q==<br /> ;quash:To set aside or vacate an order or judgment.<br /> ;question of fact:An issue arising where the parties disagree about a material fact relevent to a legal action, when only one party can be right. A court's decision about what the facts of a case are is a "finding of fact."<br /> ;question of law:An issue about which law should be applied in a legal action, or how the law should be applied in the circumstances of a particular action. A court's decision about how the law should be applied to the facts of case or about what the law is in a particular situation is a "finding of law."<br /> <br /> ==R==<br /> ;real property:A piece of land and the buildings on that land. Real property is different from chattels or other personal property because it cannot be moved.<br /> ;rebut:In law, to reply to an argument, a statement of fact or a legal presumption by presenting argument or evidence to the contrary. providing evidence which tends to disturb a presumption.<br /> ;registrar:An officer of the court with the power to make certain decisions, including the terms of a judge's order. also, an officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings.<br /> ;court registry:A central office, located in each judicial district, at which the court files for each legal action brought in that district are maintained, and at which legal documents can be filed, searched and reviewed.<br /> ;regulations:A kind of lesser legislation giving supplemental rules to a particular act. Regulations are created and amended by the government, not the Legislature or Parliament.<br /> ;relief:In law, an order sought by one party to a legal action as set out in his or her pleadings. Where more than one remedy or order is sought, each remedy sought is called a "head of relief."<br /> ;reply:In law, an answer or rebuttal to a claim made or a defence raised by the other party to an action.<br /> ;requisition:A court form (Forms F17, F29 & F35) prescribed by the Supreme Court Family Rules with which a party asks the court registry staff to perform a task (like searching a file) or asks the registrar to make a procedural order (like an order that a party be served substitutionally).<br /> ;residence:The place a person permanently lives. This is different from a person's "domicile" in that a person's residence is more concrete and less changeable in nature. A person's residence can have an impact on the court's authority to hear and decide a legal action.<br /> ;respondent:The person against whom a claim has been brought. Formerly known as the defendant.<br /> ;Response to Family Claim (Form F4):A legal document required by the Supreme Court Family Rules setting out Respondent's position on each of the orders sought by the Claimant in the Notice of Family Claim as well as the Respondent's Address for Service.<br /> ;restraining order:An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of assets, and stopping someone from harassing someone else.<br /> ;resulting trust:In family law, a finding by a court that one party holds property in trust for another as a result of the parties' intention to make a trust. A trust relationship inferred by operation of law.<br /> ;retainer:This word means several things such as 1) the act of hiring of lawyer, 2) the money paid to a lawyer to hire his or her services, and 3) the terms and extent of a lawyer's work on behalf of a client.<br /> ;review:In law, the re-examination of a state of affairs, an order or an agreement, usually to determine whether the terms of an agreement or order are still appropriate. A separation agreement or an order may state that a particular term is "reviewable" at a certain date. On that date the circumstances of each party are re-examined to determine whether the term remains appropriate, and whether the term should be cancelled, changed or let alone.<br /> ;rules of court:A set of codified guidelines governing the court process and litigation generally, and providing the official court forms required. The rules of court are particular to each level of court.<br /> <br /> ==S==<br /> ;sale:An agreement to transfer the ownership of property from one person to another in return for something else, like money or another property.<br /> ;separation agreement:A contract between spouses, partners or parents, intended to resolve all or some of the issues outstanding between them as a result of the breakdown of their relationship, and intended to guide the parties in their dealings with one another thereafter.<br /> ;personal service:The personal delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by physically handing the document to the party and verifying the recipient's identity.<br /> ;ordinary service:The delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by transmitting the document to one of the party's Addresses for Service.<br /> ;Affidavit of Service (Form F15):An affidavit in a form prescribed by the Supreme Court Family Rules sworn by the person who has personally served someone with legal documents, stating that the party was served and describing the circumstances in which service was accomplished.<br /> ;substituted service:Service in a way other than service as prescribed by the rules of court, in the manner and on the conditions imposed by an order of the court.<br /> ;settlement:A resolution of a legal action or of one or more matters at issue in that action, made by the agreement of the parties to that action, as opposed to resolution of the matter by the court following a trial or hearing.<br /> ;spouse:According to the ''Divorce Act'', a spouse is a person who is legally married to someone else, whether of the same or a different gender. Under the ''Family Relations Act'', this term also includes unmarried couples who have lived together in a marriage-like relationship for a period of at least two years.<br /> ;spousal support:Money paid by one spouse to the other to help cover the recipient's living expenses. Also called alimony and maintenance.<br /> ;'''stare decisis''':A Latin phrase meaning "standing by the thing decided," refers to the common law principle that courts are obliged to follow the decisions of the courts before them on the same subjects.<br /> ;'''status quo''':A Latin phrase meaning "the state that was," refers to whatever circumstances or conditions previously existed and, usually, had existed for some time.<br /> ;subpoena:A legal document issued either by the court or by a party which compels a witness to attend court to give evidence, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court.<br /> ;suit:A law suit, an action, a court proceeding, a case. A claimant's claim against a respondent.<br /> <br /> ==T==<br /> ;taxation:A hearing in which a client challenges a lawyer's bill and a lawyer proves his or her bill. A taxation hearing is held before a master or a registrar who examines the account to determine whether the account is fair. The master or registrar assesses the bill and issues a Certificate of Fees stating what amount is properly payable by the client or refundable by the lawyer.<br /> ;tenancy in common:A kind of ownership of a property by two or more persons such that each owner has a distinct and severable share in the property. A tenant in common may chose to sell his or her share in that property independently from other owners.<br /> ;testator:In estate law, a person who has made a will used in reference to that will. The delightful feminine form of this word is "testatrix."<br /> ;testimony:A statement made by a witness to a court as evidence, or made in an affidavit, made under oath or affirmation as to the truth of the statement.<br /> ;third party:A person named in an action or joined to an action who is neither the Claimant nor the Respondent. A third party may be joined to an action where the Respondent believes that the person has some responsibility for the cause of action.<br /> ;title:In law, having legal ownership of a thing. a document evincing legal ownership of a thing.<br /> ;trial:The testing of the respective claims and defences of the parties to an action through the presentation of evidence and legal argument at a formal hearing before a judge with the jurisdiction to hear the matter and to make a final, binding determination of the claims.<br /> ;trust:In law, a form of possession in which one person holds, deals with and is responsible for property for the benefit of another. A "trustee" is the person who holds the property in trust for the other person. the "beneficiary" is the person for whom the property is held.<br /> ;trustee:One who holds property in trust for the benefit of another.<br /> <br /> ==U==<br /> ;unjust enrichment:Money or benefits unfairly gained by one person at a corresponding expense or loss to another.<br /> ;unlawful:Acts or omissions made contrary to legislation or the common law.<br /> <br /> ==V==<br /> ;vacate:The setting aside or quashing of a decision or order, sometimes effective on the date of the vacation, sometimes with a retroactive effect as if the original order had never been made.<br /> ;validity of marriage:For a marriage to be valid, the spouses must be: not within the prohibited degrees of consanguinity, over the commmon law age of puberty, unmarried at the time of the marriage, and capable of understanding the meaning of marriage.<br /> <br /> ==W==<br /> ;waive:In law, to give up a right or entitlement. to give up the opportunity to assert a right or enforce an entitlement.<br /> ;waste:In law, intentionally or unintentionally allowing the value of a piece of property to diminish through carelessness, neglect or purposeful harm.<br /> ;will <sup>def</sup>:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;Will:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;witness:A person giving evidence on the person's oath or affirmation as to the truth of the statements made.</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Understanding_the_Legal_System_for_Family_Law_Matters&diff=554 Understanding the Legal System for Family Law Matters 2012-12-24T21:01:18Z

<p>209.17.147.129: /* When Litigation Makes Sense */</p> <hr /> <div>{{JP Boyd on Family Law TOC}}<br /> {{ambox<br /> | type = content<br /> | small = center<br /> | image = <br /> | smallimage = <br /> | textstyle = <br /> | text = '''Note:''' This page is the latest page and '''the one to continue working on'''. It was assembled by Drew from several different pages that JP created: [[Introduction to the Legal System]], [[Introduction to the Legal System ~ The Law]], [[Introduction to the Legal System ~ The Courts]], [[Introduction to the Legal System ~ Court Process]], and [[Introduction to the Legal System ~ Representing Yourself]]. - Dec 21/12<br /> | smalltext = <br /> }}<br /> <br /> There are three key components to the legal system: the law, the courts, and the people involved in the court process. In a legal dispute, the parties present their competing claims to the court, and the judge who hears the case applies the law to the facts and makes a decision which resolves the dispute. <br /> <br /> These pages provide a <span class="noglossary">brief</span> introduction and an overview of the basic elements of the legal system. The pages that follow discuss our legal system in much further detail and provide useful sample documents and court forms that you can use to help draft your own materials.<br /> <br /> ==Introduction==<br /> <br /> When some couples separate, they just separate and it's over and done with. For other couples, separation raises a bunch of practical and legal problems. If a couple have children, they'll have to decide where the children will mostly live, how decisions will be made about parenting issues will be made, how much time each parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has property, they'll have to decide who should keep what.<br /> <br /> ''First, then, you need to identify the legal problems you have to deal with.''<br /> <br /> When a couple have problems like these, they also have to decide how they'll solve those problems. In other words, they need to pick the legal process they'll use to figure everything out and get to a resolution. Some couples go to a trusted friend, family member or community leader for help. Others go to court. Others use a mediator to help them find a solution. Others just talk it out.<br /> <br /> ''Second, you need to select the process you'll use to solve the legal problems.''<br /> <br /> In its narrowest sense, ''the legal system'' refers to the parties, the judges, the court staff and the lawyers that make up the litigation process, and of course the laws and rules that guide the litigation process. Litigation is only one of the choices you have in finding a solution to your family law problems. Other options include negotiation, mediation, collaborative processes and arbitration.<br /> <br /> ==Choosing the Right Process==<br /> <br /> Many people see court as their first and only choice. That might be true if your landlord is trying to evict you unfairly, if your business partner has broken a deal, if you've had a car accident and ICBC won't pay, or if you're suing some huge corporation. It is certainly not true for family law problems.<br /> <br /> ===Deciding Not to Litigate===<br /> <br /> You could, for example, sit down over a cup of coffee and simply talk about the problem. You could hire a family law mediator to mediate your problems, work through your emotions and come up with a solution that you're both as happy with as possible. You could hire a lawyer to negotiate a solution for you, or you could let the lawyer assist you as you work through the mediation process. There's also collaborative law, in which everybody has their own lawyer and their own divorce coach, and they agree to work through their problems without ever going to court. There's also arbitration, in which the parties hire a family law arbitrator to serve their own personal judge and chose the rules that will guide the process.<br /> <br /> In almost all cases, negotiation and mediation, and even arbitration, are better choices than litigation. They all cost a lot less than litigation, they offer you the best chance of getting to a solution that you're both happy with, and they give you the best chance of maintaining a civil relationship with your ex after the dust has settled. Whatever you do, it's very important that you get legal advice from a lawyer in your area since most laws change from province to province and from state to state.<br /> <br /> Despite the obvious benefits of avoiding litigation, most people still go to court when they have the problem. Why? Usually because they are angry, sometimes because they want revenge. Sometimes because they see a bigger threat to their personal and financial well-being than really exists; sometimes because they can't trust their ex any more and simply don't know what to do next. Sometimes, it's because they are emotionally immature and can't get through their anger to return to a more rational, common sense point of view.<br /> <br /> Today, the legal system isn't just about judges and courts, lawyers and the law. It also includes mediation, arbitration, negotiation and collaborative law. If you have a family law problem, litigation is not your only choice. You have options.<br /> <br /> ===When Litigation Makes Sense===<br /> <br /> Sometimes litigation is your smartest choice; sometimes there's just no other option except litigation.<br /> <br /> You'll need to start a court proceeding if you've tried to resolve things out of court but can't reach a final agreement. For some people, prolonging the conflict is a way of continuing a relationship past separation; others are afraid to commit to a final agreement for fear of the future. Still others refuse to accept anything less than their best-case outcome and don't see the financial and emotional benefits of settlement.<br /> <br /> If your ex has started a court proceeding, on the other hand, you'll have to participate in the litigation or you risk the court making an order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court proceedings also settle short of trial. Settlement can still be reached through negotiation, mediation or collaborative processes.<br /> <br /> Even if litigation isn't underway or may not be required to resolve your dispute, you may want to start a court proceeding if:<br /> <br /> #there's a history of violence or abuse in your relationship;<br /> #you or your children need to be protected from your ex;<br /> #your ex is threatening to something drastic like take the children, hide property or rack up debt;<br /> #your ex is refusing to disclose financial or other information; <br /> #your ex is refusing to provide support and you need financial help; or,<br /> #you need to demonstrate that you're serious about moving things forward toward a resolution.<br /> <br /> ==The Law==<br /> <br /> When lawyers talk about they law they're talking about two kinds of law, laws made by the government and the common law.<br /> <br /> Laws made by the government are called legislation. Important legislation in family law includes the ''Divorce Act'', made by the federal government, and the ''Family Law Act'', made by the provincial government. The government can also make regulations for a particular piece of legislation that might contain important additional rules or say how the legislation is to be interpreted. The most important regulation in family law is the Child Support Guidelines, a regulation to the ''Divorce Act''.<br /> <br /> The common law is the legal rules and principles that aren't created by the government. The common law has been developed by the court since the modern court system was established several hundreds of years ago.<br /> <br /> ===Legislated Laws===<br /> <br /> Legislated laws are the rules which govern our day-to-day lives. The federal and provincial governments both have the authority to make legislation, like the provincial ''Motor Vehicle Act'', which says how fast you can go and that you need to have a licence and insurance to drive a car, or the federal ''Criminal Code'', which says that it's an offence to stalk someone, to steal or to shout "fire" in a crowded theatre. <br /> <br /> Because of our constitution, each level of government can only make legislation on certain subjects, and normally the sorts of things one level of government can make rules about can't be regulated by the other level of government. For example, only the federal government can make laws about divorce, and only the provincial government can make laws about property.<br /> <br /> ===The Common Law===<br /> <br /> One of the court's more important jobs is to interpret and apply legislated laws. For example, the ''Divorce Act'' says that:<br /> <br /> <blockquote>In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.</blockquote><br /> <br /> The court has had to decide what "as is consistent with the best interests of the child" means in applying this section.<br /> <br /> Unlike the governments' laws, which are written down, organized and codified, the common law is more of a series of principles and legal concepts which guide the courts in their process and their consideration of each case. These ideas are not organized and codified, they are found in "case law", judges' written explanations of why they have decided a particular case a particular way.<br /> <br /> The common law provides direction and guidance on a wide variety of issues, such as how to understand legislation, the proper interpretation of contracts, the test to be applied to determine whether someone has been negligent and the rules of evidence. However, unlike legislated laws, the common law doesn't usually apply to our day-to-day lives in the sense of imposing rules that say how fast we can drive in a school zone or whether punching someone is a criminal offence.<br /> <br /> ==The Courts==<br /> <br /> The fundamental purpose of the courts is to resolve legal disputes in a fair and impartial manner. The courts deal with all manner of legal disputes, from the government's claim that someone has committed a crime, to a property owner's claim that someone has trespassed on their property, to a shareholder's grievance against a company, to an employee's claim of wrongful dismissal.<br /> <br /> No matter what the nature of the dispute is, the judge who hears the dispute must give each party the chance to tell their story and give a complete answer, listen to each party without bias, and make a fair determination resolving the dispute based on the facts and the laws which apply to the dispute.<br /> <br /> ===The Courts of British Columbia===<br /> <br /> There are three levels of court in this province: the Provincial Court of British Columbia, the Supreme Court of British Columbia, and the Court of Appeal for British Columbia. Each level of court is superior to the one below it. A decision of the Provincial Court can be challenged before the Supreme Court, and a decision of the Supreme Court can be challenged before the Court of Appeal.<br /> <br /> ====The Provincial Court====<br /> <br /> There are four divisions of the Provincial Court: Criminal and Youth Court, which mostly deals with charges under the ''Criminal Code''; Small Claims Court, which deals with claims about contracts, services, property and debt; Traffic and Bylaw Court, which deals traffic tickets and provincial and municipal offences; and, Family Court, which deals with certain claims under the ''Family Law Act''. <br /> <br /> The jurisdiction of the Provincial Court is fairly narrow. It can only deal with the subjects assigned to it by the provincial government, and unless the government has expressly authorized the Provincial Court to deal with an issue, the Provincial Court cannot hear the case. For example, Small Claims Court, can only handle claims up to $25,000.00, and Family Court cannot deal with claims involving family property or family debt, or claims under the ''Divorce Act''. Each branch of the Provincial Court has its own set of procedural rules and its own court forms.<br /> <br /> ====The Supreme Court====<br /> <br /> The Supreme Court can deal with any claim and there is no limit to the court's authority, except for the limits set out in the court's procedural rules and in the constitution. There are three kinds of judicial official in the Supreme Court, registrars, masters and justices. Justices and masters deal with most family law problems.<br /> <br /> There are two sets of rules in the Supreme Court, the Supreme Court Family Rules, which apply just to family law disputes, and the Supreme Court Civil Rules, which apply to all other non-criminal matters. Each set of rules has its own court forms.<br /> <br /> The Supreme Court is a trial court, like the Provincial Court, and an appeal court. The Supreme Court hears appeals from Provincial Court decisions, and justices of the Supreme Court hear appeals from masters' decisions.<br /> <br /> ====The Court of Appeal====<br /> <br /> The Court of Appeal is the highest court in British Columbia and hears appeals from Supreme Court decisions; the Court of Appeal does not hear trials. The Court of Appeal has its own set of procedural rules and its own court forms.<br /> <br /> ===The Federal Courts===<br /> <br /> The Federal Court of Canada is a second court system that is parallel to the courts of British Columbia and the other provinces and territories. The Federal Court and Federal Court of Appeal only hear certain kinds of disputes, including immigration matters and tax problems.<br /> <br /> The federal courts also deal with ''Divorce Act'' claims in those rare cases when each spouse has started a separate action for divorce on the same day but in different provinces.<br /> <br /> ===The Supreme Court of Canada===<br /> <br /> The highest level of court in the country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provinces' courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with hearing appeals.<br /> <br /> Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to.<br /> <br /> ==Court Process==<br /> <br /> All court processes start and end more or less the same way. You must file a particular form in court and serve on the other party. After being served, the other party has a certain number of days to file a reply. If the other party replies there is a hearing; if the other party doesn't reply and you can prove that he or she was served, you can ask for a judgment in default. That's about it.<br /> <br /> In the Provincial Court, you can start a court proceeding by filing an ''Application to Obtain an Order''. The other party has 30 days after being served to file a ''Reply''.<br /> <br /> In the Supreme Court, court proceedings are started by filing a ''Notice of Family Claim'', and sometimes by filing a ''Petition''. A person served with a Notice of Family Claim has 30 days to file a ''Response to Family Claim'' and possibly a ''Counterclaim'', a claim against the person who started the court proceeding. A person served with a Petition has 21 days to file a ''Response to Petition'', if served in Canada, 35 days if served in the United States of America, and 49 days if served anywhere else.<br /> <br /> Eventually, there will be a hearing, trial or application for default judgment in the Provincial Court or the Supreme Court that will result in a final order that puts an end to the dispute.<br /> <br /> In most family law proceedings, things rarely go from starting the proceeding straight to trial. Along the way you will likely have to:<br /> #attend a judicial case conference, if you're in the Supreme Court, or a family case conference, if you're in the Provincial Court;<br /> #produce financial documents and other documents that are important;<br /> #attend an examination for discovery, if you're in the Supreme Court; and,<br /> #go to one or more interim applications.<br /> <br /> An interim application is an application to the court for a temporary order, called an interim order, before trial. Interim applications and these other processes are all discussed elsewhere in this website.<br /> <br /> If either party is unhappy with the result of the hearing or trial and can show that the judge made a mistake, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of the Supreme Court are appealed to the Court of Appeal.<br /> <br /> An appeal is started by filing a ''Notice of Appeal'', or, depending on the circumstances, a ''Notice of Application for Leave to Appeal'', and serving the filed document on the other party, usually within 30 days of the date of the final order. The other party has a certain amount of time to file a ''Notice of Appearance'' in the Court of Appeal or a ''Notice of Interest'' for appeals from the Provincial Court to the Supreme Court. <br /> <br /> Eventually, there will be a hearing that will result in a final order that puts and end to the appeal. Appeals heard by the Supreme Court can be appealed to the Court of Appeal, and appeals heard by the Court of Appeal can be heard by the Supreme Court of Canada, but only if that court gives permission.<br /> <br /> ===Trial Basics===<br /> <br /> A trial is the testing of a legal claim before a judge with the authority to decide the issue. A claim might be that someone has been negligent which caused harm to the person making the claim, or it might be that one spouse should pay spousal support to the other spouse. A claim is "tested" in the sense that the judge's job is to see whether the evidence and the law support the claim.<br /> <br /> The person who started the court proceeding will go first and presents his or her evidence. Evidence at trial is almost always given by witnesses and through documents like bank records, income tax returns and photographs; in rare cases, the evidence of a witness can also be given by an affidavit. The other party goes next and presents the evidence supporting his or her side of the case. When all of the evidence has been presented to the judge, each party tells the judge why the facts and the law why the judge should decide the case as they think it should be decided. <br /> <br /> In every case that goes to trial, and, to be clear, not every case does, the judge who hears the case first makes a decision about the what the facts of the case are after listening to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding of fact". The judge then reviews the law and the rules and legal principles that might apply, and decides what law applies to the legal issues. This is called making a "finding of law". The judge makes a decision about the legal claim by applying the law to the facts.<br /> <br /> Sometimes the judge is able to make a decision after hearing all the evidence and party's arguments about why what they say should happen should happen. Most of the time, however, the judge will need to think about the evidence and the law before he or she can make a decision. This is called a "reserved judgment".<br /> <br /> ===Appeal Basics===<br /> <br /> The decision of the judge at the trial can be challenged to a higher court. A decision of the Provincial Court is appealed to the the Supreme Court, and a decision of the Supreme Court is appealed to the Court of Appeal. Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada, but only if the court agrees to hear the appeal.<br /> <br /> An appeal is not a chance to have a new trial, introduce new evidence or call additional witnesses, and you don't get to appeal a decision just because you're unhappy with how things turned out. Appeals generally only concern whether the judge used the right law and applied the law correctly. This is what the Court of Appeal said about the nature of appeals in the 2011 case of ''Basic v. Strata Plan LMS 0304'':<br /> <br /> <blockquote>Consideration of this appeal must start, as all appeals do, recalling that the role of this court is not that of a trial court. Rather, our task is to determine whether the judge made an error of law, found facts based on a misapprehension of the evidence, or found facts that are not supported by evidence. Even where there is such an error of fact, we will only interfere with the order if the error of fact is material to the outcome.</blockquote><br /> <br /> An appeal court does not hear new evidence or make decisions about the facts of a case; the appeal court will accept the trial judge's findings of fact. If the appeal court is satisfied that the trial made a mistake about the law, however, the appeal may succeed. <br /> <br /> Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three or five judges. At the hearing, the person who started the appeal will go first and will explain why the trial judge made a mistake about the law. The other party goes next and explains why the trial judge appropriately considered the applicable legal principles and why the judge was right. Sometimes the court is able to make a decision after hearing from each party, but the court will usually need to consider things before making a decision.<br /> <br /> ==Representing Yourself==<br /> <br /> There is no rule that says that you have to have a lawyer represent you in court. Although a court proceeding can be complicated to manage and the rules of court can be confusing, you have the right to represent yourself.<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Understanding_the_Legal_System_for_Family_Law_Matters&diff=553 Understanding the Legal System for Family Law Matters 2012-12-24T20:56:23Z

<p>209.17.147.129: /* When Litigation Makes Sense */</p> <hr /> <div>{{JP Boyd on Family Law TOC}}<br /> {{ambox<br /> | type = content<br /> | small = center<br /> | image = <br /> | smallimage = <br /> | textstyle = <br /> | text = '''Note:''' This page is the latest page and '''the one to continue working on'''. It was assembled by Drew from several different pages that JP created: [[Introduction to the Legal System]], [[Introduction to the Legal System ~ The Law]], [[Introduction to the Legal System ~ The Courts]], [[Introduction to the Legal System ~ Court Process]], and [[Introduction to the Legal System ~ Representing Yourself]]. - Dec 21/12<br /> | smalltext = <br /> }}<br /> <br /> There are three key components to the legal system: the law, the courts, and the people involved in the court process. In a legal dispute, the parties present their competing claims to the court, and the judge who hears the case applies the law to the facts and makes a decision which resolves the dispute. <br /> <br /> These pages provide a <span class="noglossary">brief</span> introduction and an overview of the basic elements of the legal system. The pages that follow discuss our legal system in much further detail and provide useful sample documents and court forms that you can use to help draft your own materials.<br /> <br /> ==Introduction==<br /> <br /> When some couples separate, they just separate and it's over and done with. For other couples, separation raises a bunch of practical and legal problems. If a couple have children, they'll have to decide where the children will mostly live, how decisions will be made about parenting issues will be made, how much time each parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has property, they'll have to decide who should keep what.<br /> <br /> ''First, then, you need to identify the legal problems you have to deal with.''<br /> <br /> When a couple have problems like these, they also have to decide how they'll solve those problems. In other words, they need to pick the legal process they'll use to figure everything out and get to a resolution. Some couples go to a trusted friend, family member or community leader for help. Others go to court. Others use a mediator to help them find a solution. Others just talk it out.<br /> <br /> ''Second, you need to select the process you'll use to solve the legal problems.''<br /> <br /> In its narrowest sense, ''the legal system'' refers to the parties, the judges, the court staff and the lawyers that make up the litigation process, and of course the laws and rules that guide the litigation process. Litigation is only one of the choices you have in finding a solution to your family law problems. Other options include negotiation, mediation, collaborative processes and arbitration.<br /> <br /> ==Choosing the Right Process==<br /> <br /> Many people see court as their first and only choice. That might be true if your landlord is trying to evict you unfairly, if your business partner has broken a deal, if you've had a car accident and ICBC won't pay, or if you're suing some huge corporation. It is certainly not true for family law problems.<br /> <br /> ===Deciding Not to Litigate===<br /> <br /> You could, for example, sit down over a cup of coffee and simply talk about the problem. You could hire a family law mediator to mediate your problems, work through your emotions and come up with a solution that you're both as happy with as possible. You could hire a lawyer to negotiate a solution for you, or you could let the lawyer assist you as you work through the mediation process. There's also collaborative law, in which everybody has their own lawyer and their own divorce coach, and they agree to work through their problems without ever going to court. There's also arbitration, in which the parties hire a family law arbitrator to serve their own personal judge and chose the rules that will guide the process.<br /> <br /> In almost all cases, negotiation and mediation, and even arbitration, are better choices than litigation. They all cost a lot less than litigation, they offer you the best chance of getting to a solution that you're both happy with, and they give you the best chance of maintaining a civil relationship with your ex after the dust has settled. Whatever you do, it's very important that you get legal advice from a lawyer in your area since most laws change from province to province and from state to state.<br /> <br /> Despite the obvious benefits of avoiding litigation, most people still go to court when they have the problem. Why? Usually because they are angry, sometimes because they want revenge. Sometimes because they see a bigger threat to their personal and financial well-being than really exists; sometimes because they can't trust their ex any more and simply don't know what to do next. Sometimes, it's because they are emotionally immature and can't get through their anger to return to a more rational, common sense point of view.<br /> <br /> Today, the legal system isn't just about judges and courts, lawyers and the law. It also includes mediation, arbitration, negotiation and collaborative law. If you have a family law problem, litigation is not your only choice. You have options.<br /> <br /> ===When Litigation Makes Sense===<br /> <br /> Sometimes litigation is your smartest choice; sometimes there's just no other option except litigation.<br /> <br /> You'll need to start a court proceeding if you've tried to resolve things out of court but can't reach a final agreement. For some people, prolonging the conflict is a way of continuing a relationship past separation; others are afraid to commit to a final agreement for fear of the future. Still others refuse to accept anything less than their best-case outcome and don't see the financial and emotional benefits of settlement.<br /> <br /> If your ex has started a court proceeding, on the other hand, you'll have to participate in the litigation or you risk the court making an order without <div>hearing</div> from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court proceedings also settle short of trial. Settlement can still be reached through negotiation, mediation or collaborative processes.<br /> <br /> Even if litigation isn't underway or may not be required to resolve your dispute, you may want to start a court proceeding if:<br /> <br /> #there's a history of violence or abuse in your relationship;<br /> #you or your children need to be protected from your ex;<br /> #your ex is threatening to something drastic like take the children, hide property or rack up debt;<br /> #your ex is refusing to disclose financial or other information; <br /> #your ex is refusing to provide support and you need financial help; or,<br /> #you need to demonstrate that you're serious about moving things forward toward a resolution.<br /> <br /> ==The Law==<br /> <br /> When lawyers talk about they law they're talking about two kinds of law, laws made by the government and the common law.<br /> <br /> Laws made by the government are called legislation. Important legislation in family law includes the ''Divorce Act'', made by the federal government, and the ''Family Law Act'', made by the provincial government. The government can also make regulations for a particular piece of legislation that might contain important additional rules or say how the legislation is to be interpreted. The most important regulation in family law is the Child Support Guidelines, a regulation to the ''Divorce Act''.<br /> <br /> The common law is the legal rules and principles that aren't created by the government. The common law has been developed by the court since the modern court system was established several hundreds of years ago.<br /> <br /> ===Legislated Laws===<br /> <br /> Legislated laws are the rules which govern our day-to-day lives. The federal and provincial governments both have the authority to make legislation, like the provincial ''Motor Vehicle Act'', which says how fast you can go and that you need to have a licence and insurance to drive a car, or the federal ''Criminal Code'', which says that it's an offence to stalk someone, to steal or to shout "fire" in a crowded theatre. <br /> <br /> Because of our constitution, each level of government can only make legislation on certain subjects, and normally the sorts of things one level of government can make rules about can't be regulated by the other level of government. For example, only the federal government can make laws about divorce, and only the provincial government can make laws about property.<br /> <br /> ===The Common Law===<br /> <br /> One of the court's more important jobs is to interpret and apply legislated laws. For example, the ''Divorce Act'' says that:<br /> <br /> <blockquote>In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.</blockquote><br /> <br /> The court has had to decide what "as is consistent with the best interests of the child" means in applying this section.<br /> <br /> Unlike the governments' laws, which are written down, organized and codified, the common law is more of a series of principles and legal concepts which guide the courts in their process and their consideration of each case. These ideas are not organized and codified, they are found in "case law", judges' written explanations of why they have decided a particular case a particular way.<br /> <br /> The common law provides direction and guidance on a wide variety of issues, such as how to understand legislation, the proper interpretation of contracts, the test to be applied to determine whether someone has been negligent and the rules of evidence. However, unlike legislated laws, the common law doesn't usually apply to our day-to-day lives in the sense of imposing rules that say how fast we can drive in a school zone or whether punching someone is a criminal offence.<br /> <br /> ==The Courts==<br /> <br /> The fundamental purpose of the courts is to resolve legal disputes in a fair and impartial manner. The courts deal with all manner of legal disputes, from the government's claim that someone has committed a crime, to a property owner's claim that someone has trespassed on their property, to a shareholder's grievance against a company, to an employee's claim of wrongful dismissal.<br /> <br /> No matter what the nature of the dispute is, the judge who hears the dispute must give each party the chance to tell their story and give a complete answer, listen to each party without bias, and make a fair determination resolving the dispute based on the facts and the laws which apply to the dispute.<br /> <br /> ===The Courts of British Columbia===<br /> <br /> There are three levels of court in this province: the Provincial Court of British Columbia, the Supreme Court of British Columbia, and the Court of Appeal for British Columbia. Each level of court is superior to the one below it. A decision of the Provincial Court can be challenged before the Supreme Court, and a decision of the Supreme Court can be challenged before the Court of Appeal.<br /> <br /> ====The Provincial Court====<br /> <br /> There are four divisions of the Provincial Court: Criminal and Youth Court, which mostly deals with charges under the ''Criminal Code''; Small Claims Court, which deals with claims about contracts, services, property and debt; Traffic and Bylaw Court, which deals traffic tickets and provincial and municipal offences; and, Family Court, which deals with certain claims under the ''Family Law Act''. <br /> <br /> The jurisdiction of the Provincial Court is fairly narrow. It can only deal with the subjects assigned to it by the provincial government, and unless the government has expressly authorized the Provincial Court to deal with an issue, the Provincial Court cannot hear the case. For example, Small Claims Court, can only handle claims up to $25,000.00, and Family Court cannot deal with claims involving family property or family debt, or claims under the ''Divorce Act''. Each branch of the Provincial Court has its own set of procedural rules and its own court forms.<br /> <br /> ====The Supreme Court====<br /> <br /> The Supreme Court can deal with any claim and there is no limit to the court's authority, except for the limits set out in the court's procedural rules and in the constitution. There are three kinds of judicial official in the Supreme Court, registrars, masters and justices. Justices and masters deal with most family law problems.<br /> <br /> There are two sets of rules in the Supreme Court, the Supreme Court Family Rules, which apply just to family law disputes, and the Supreme Court Civil Rules, which apply to all other non-criminal matters. Each set of rules has its own court forms.<br /> <br /> The Supreme Court is a trial court, like the Provincial Court, and an appeal court. The Supreme Court hears appeals from Provincial Court decisions, and justices of the Supreme Court hear appeals from masters' decisions.<br /> <br /> ====The Court of Appeal====<br /> <br /> The Court of Appeal is the highest court in British Columbia and hears appeals from Supreme Court decisions; the Court of Appeal does not hear trials. The Court of Appeal has its own set of procedural rules and its own court forms.<br /> <br /> ===The Federal Courts===<br /> <br /> The Federal Court of Canada is a second court system that is parallel to the courts of British Columbia and the other provinces and territories. The Federal Court and Federal Court of Appeal only hear certain kinds of disputes, including immigration matters and tax problems.<br /> <br /> The federal courts also deal with ''Divorce Act'' claims in those rare cases when each spouse has started a separate action for divorce on the same day but in different provinces.<br /> <br /> ===The Supreme Court of Canada===<br /> <br /> The highest level of court in the country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provinces' courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with hearing appeals.<br /> <br /> Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to.<br /> <br /> ==Court Process==<br /> <br /> All court processes start and end more or less the same way. You must file a particular form in court and serve on the other party. After being served, the other party has a certain number of days to file a reply. If the other party replies there is a hearing; if the other party doesn't reply and you can prove that he or she was served, you can ask for a judgment in default. That's about it.<br /> <br /> In the Provincial Court, you can start a court proceeding by filing an ''Application to Obtain an Order''. The other party has 30 days after being served to file a ''Reply''.<br /> <br /> In the Supreme Court, court proceedings are started by filing a ''Notice of Family Claim'', and sometimes by filing a ''Petition''. A person served with a Notice of Family Claim has 30 days to file a ''Response to Family Claim'' and possibly a ''Counterclaim'', a claim against the person who started the court proceeding. A person served with a Petition has 21 days to file a ''Response to Petition'', if served in Canada, 35 days if served in the United States of America, and 49 days if served anywhere else.<br /> <br /> Eventually, there will be a hearing, trial or application for default judgment in the Provincial Court or the Supreme Court that will result in a final order that puts an end to the dispute.<br /> <br /> In most family law proceedings, things rarely go from starting the proceeding straight to trial. Along the way you will likely have to:<br /> #attend a judicial case conference, if you're in the Supreme Court, or a family case conference, if you're in the Provincial Court;<br /> #produce financial documents and other documents that are important;<br /> #attend an examination for discovery, if you're in the Supreme Court; and,<br /> #go to one or more interim applications.<br /> <br /> An interim application is an application to the court for a temporary order, called an interim order, before trial. Interim applications and these other processes are all discussed elsewhere in this website.<br /> <br /> If either party is unhappy with the result of the hearing or trial and can show that the judge made a mistake, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of the Supreme Court are appealed to the Court of Appeal.<br /> <br /> An appeal is started by filing a ''Notice of Appeal'', or, depending on the circumstances, a ''Notice of Application for Leave to Appeal'', and serving the filed document on the other party, usually within 30 days of the date of the final order. The other party has a certain amount of time to file a ''Notice of Appearance'' in the Court of Appeal or a ''Notice of Interest'' for appeals from the Provincial Court to the Supreme Court. <br /> <br /> Eventually, there will be a hearing that will result in a final order that puts and end to the appeal. Appeals heard by the Supreme Court can be appealed to the Court of Appeal, and appeals heard by the Court of Appeal can be heard by the Supreme Court of Canada, but only if that court gives permission.<br /> <br /> ===Trial Basics===<br /> <br /> A trial is the testing of a legal claim before a judge with the authority to decide the issue. A claim might be that someone has been negligent which caused harm to the person making the claim, or it might be that one spouse should pay spousal support to the other spouse. A claim is "tested" in the sense that the judge's job is to see whether the evidence and the law support the claim.<br /> <br /> The person who started the court proceeding will go first and presents his or her evidence. Evidence at trial is almost always given by witnesses and through documents like bank records, income tax returns and photographs; in rare cases, the evidence of a witness can also be given by an affidavit. The other party goes next and presents the evidence supporting his or her side of the case. When all of the evidence has been presented to the judge, each party tells the judge why the facts and the law why the judge should decide the case as they think it should be decided. <br /> <br /> In every case that goes to trial, and, to be clear, not every case does, the judge who hears the case first makes a decision about the what the facts of the case are after listening to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding of fact". The judge then reviews the law and the rules and legal principles that might apply, and decides what law applies to the legal issues. This is called making a "finding of law". The judge makes a decision about the legal claim by applying the law to the facts.<br /> <br /> Sometimes the judge is able to make a decision after hearing all the evidence and party's arguments about why what they say should happen should happen. Most of the time, however, the judge will need to think about the evidence and the law before he or she can make a decision. This is called a "reserved judgment".<br /> <br /> ===Appeal Basics===<br /> <br /> The decision of the judge at the trial can be challenged to a higher court. A decision of the Provincial Court is appealed to the the Supreme Court, and a decision of the Supreme Court is appealed to the Court of Appeal. Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada, but only if the court agrees to hear the appeal.<br /> <br /> An appeal is not a chance to have a new trial, introduce new evidence or call additional witnesses, and you don't get to appeal a decision just because you're unhappy with how things turned out. Appeals generally only concern whether the judge used the right law and applied the law correctly. This is what the Court of Appeal said about the nature of appeals in the 2011 case of ''Basic v. Strata Plan LMS 0304'':<br /> <br /> <blockquote>Consideration of this appeal must start, as all appeals do, recalling that the role of this court is not that of a trial court. Rather, our task is to determine whether the judge made an error of law, found facts based on a misapprehension of the evidence, or found facts that are not supported by evidence. Even where there is such an error of fact, we will only interfere with the order if the error of fact is material to the outcome.</blockquote><br /> <br /> An appeal court does not hear new evidence or make decisions about the facts of a case; the appeal court will accept the trial judge's findings of fact. If the appeal court is satisfied that the trial made a mistake about the law, however, the appeal may succeed. <br /> <br /> Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three or five judges. At the hearing, the person who started the appeal will go first and will explain why the trial judge made a mistake about the law. The other party goes next and explains why the trial judge appropriately considered the applicable legal principles and why the judge was right. Sometimes the court is able to make a decision after hearing from each party, but the court will usually need to consider things before making a decision.<br /> <br /> ==Representing Yourself==<br /> <br /> There is no rule that says that you have to have a lawyer represent you in court. Although a court proceeding can be complicated to manage and the rules of court can be confusing, you have the right to represent yourself.<br /> <br /> {{JP Boyd on Family Law Navbox|type=chapters}}</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Terminology&diff=551 Terminology 2012-12-24T20:41:07Z

<p>209.17.147.129: /* M */</p> <hr /> <div><div class="noautonum">__TOC__</div><br /> ==A==<br /> ;ab initio:A Latin phrase meaning "from the beginning." A marriage which is unlawful is void ''ab initio'', as if it never happened.<br /> ;abduction:The taking of a person by force or fraud. In family law, the taking of a child contrary to a court order or without the other parent's permission. In certain circumstances, this may also be a criminal offence.<br /> ;abrogate:To revoke or annul. One "abrogates" a contract, like a family agreement, by doing something expressly contrary to the agreement. One party's act of abrogation may not void the agreement, but will give the other party a cause of action.<br /> ;access:A parent's time with their children following the breakdown of the parent's relationship. Access usually refers to the visits of a child with the parent who doesn't have the child's primary residence.<br /> ;account:In law, a lawyer's bill to his or her client. Also, a statement of one person's view of events.<br /> ;Act:A law passed by a government, also called "legislation" or a "statute." Also, the intentional doing of a thing.<br /> ;action:A law suit. or a legal proceeding in which one party sues another for a remedy or specific relief. In family law, an action for divorce is a court proceeding in which the claimant sues the respondent for the relief of an order for the parties' divorce.<br /> ;address for service:The address at which a party must accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addreses for service may include postal addresses, fax numbers and email addresses.<br /> ;adoption:In family law, the act or process of one person taking another person's natural child as his or her own. The child then becomes the adopting parent's legal child as if the child were the adopting parent's natural child, and the child's biological parent loses all rights and obligations with respect to the child.<br /> ;''Adoption Act'':A provincial law dealing with entitlement to adopt and the adoption process.<br /> ;adoptive parent:A person who has formally assumed the status of parent to a child who is not his or her biological offspring. <br /> ;adultery:The act of a married person voluntarily engaging in sexual intercourse with a person other than his or her spouse; cheating; playing around; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act.<br /> ;advance:In family law, this usually refers to one party obtaining a share of his or her portion of the family assets before those assets have been divided, whether following trial or a final settlement of the matter.<br /> ;advocate:A lawyer; sometimes a person other than a lawyer who presents and argues a case in court on behalf of a party to the proceeding. Also, to argue a debated position.<br /> ;affidavit:A legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally under oath. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit about the truth of its contents. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements orally before a judge at trial.<br /> ;affirm:To promise that a statement is true. When someone "swears" to tell the truth, they are considered to be taking an oath on their faith in a god. Affirming is a substitute for swearing something before a god, most often employed where person making the statement is an atheist or under a religious proscription from making oaths.<br /> ;age of majority:The age at which someone becomes a legal adult with the full capacity to act on their own, independent of their parents, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority.<br /> ;agent:In law, someone acting on behalf of someone else, with that person's express permission and normally their express direction.<br /> ;alias:A name by which people know you other than your legal name.<br /> ;alienation:In family law, the actions or statements of a parent which tend to sever, damage or harm the child's relationship with or affections for the other parent.<br /> ;allegation:An assertion that a certain set of facts is true, such as "on Monday, I had soup for lunch" or "Bob drives a blue Camaro." Also called an allegation of fact or a statement of fact.<br /> ;alternative dispute resolution:A phrase referring to processes for the resolution of disputes outside the court system, including mediation, negotiation and collaborative law. In family law, the purpose of ADR is to offer a less conflict-oriented and less expensive way to resolve a dispute than litigation.<br /> ;amend:To change or alter a pleading or document which has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "Amended Counterclaim."<br /> ;amicus curiae:A Latin phrase meaning "friend of the court." Usually refers to a lawyer who does not act for any of the parties and assists or brings relevant information to the attention of the presiding judge.<br /> ;annulment:A declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occured. <br /> ;answer:A response to a claim or an allegation of fact. Usually refers to legal documents used to reply to the allegations or claims of another party, such as a Response to Family Claim, an Application Response or a Reply.<br /> ;appeal:An application to a court for a review of the decision of a lower court and, hopefully, the reversal of that decision. A decision of a judge of the Supreme Court of British Columbia is, for example, appealed to the Court of Appeal for British Columbia.<br /> ;applicant:The party to an action who brings an application to court in the course of that action, usually an application for an interim order.<br /> ;application:A request to the court that it make an order for specific relief, usually on an interim or temporary basis.<br /> ;application respondent:The party to an action against whom an application has been brought in the course of that action. the party replying to the applicant's application, usually an application for an interim order.<br /> ;Application Response (Form F32):A legal document required by the Supreme Court Family Rules setting out the application respondent's position on the relief claimed in an application and the grounds on which that relief is opposed.<br /> ;arbitrator:A person selected by the parties to a dispute to resolve their dispute outside the court process and to whom the parties give the authority to impose a settlement.<br /> ;arbitration:A dispute resolution process subject to the principles of natural justice in which the parties pick the person who will resolve their dispute and agree to be bound by the arbitrator's decision.<br /> ;argument:In law, persuasion by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence about the facts of a case, or to a written brief of argument.<br /> ;arrears:Money owing for child support or spousal support as a result of an agreement or a court order which has not been paid.<br /> ;assess:To determine the value or amount of something. A lawyer's bill may be assessed by a registrar to determine the proper amount the client should pay. a piece of property may be "assessed" to determine its likely sale price.<br /> ;assign:To transfer an interest or right in something, such as property or a cause of action, to someone else.<br /> <br /> ==B==<br /> ;bad faith:Intentionally misleading someone else, whether by doing or not doing something. acting in a manner contrary to one's actual intention. an intentional failure to act honestly and openly. Also called ''male fides''.<br /> ;barrister & solicitor:A lawyer. a person licenced to practice law in a particular jursidiction. In England barristers do trial work and solicitors draft legal documents. In Canada, lawyers are both barristers and solicitors.<br /> ;beneficiary:The person for whose benefit a trustee holds property. the recipient or intended recipient of property passed in a will.<br /> ;bill:A lawyer's statement of account. Also, draft legislation presented by government to the Legislature or Parliament for approval.<br /> ;binding:A requirement or obligation to honour and abide by a contract or order of the court. for example, a judge's order is binding in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be followed by a lower court.<br /> ;bona fide:A Latin phrase meaning "in good faith;" doing something honestly and openly, without the intention of misleading or causing harm to someone else.<br /> ;breach of contract:Acting or failing to act in a manner contrary to the terms of the agreement. In family law, a breach of a term of a family agreement may give rise to a cause of action for the other party, but the breach is unlikely to allow the other party to treat the agreement as if it were cancelled or void.<br /> ;brief:A written argument. a memorandum of law. A brief is usually presented to a judge as a summary of an argument or a summary of the law on a particular issue.<br /> ;business assets:In family law, property owned by a spouse's company or corporation and not used for family purposes. Business assets are not usually subject to division between spouses, unlike family assets.<br /> ==C==<br /> ;Charter of Rights and Freedoms:A part of the ''Constitution Act, 1981'' which sets out the fundamental rights and freedoms shared by all Canadians, including the freedoms of religion and expression and the rights to life and liberty. Neither the federal nor the provincial governments can pass laws or act in ways contrary to the ''Charter''. Certain sections of the ''Charter'', particularly the portions dealing with equality rights, have a special importance for family law. For example, the way that the provincial ''Family Relations Act'' treats unmarried and married couples differently for the purposes of dividing their assets may be contrary to equality guarantees set out in the ''Charter''.<br /> ;case:A law suit. an action. a cause of action. an instance of litigation. Also refers to a historic decision of the court.<br /> ;certificate of pending litigation (CPL):A document filed in the Land Title and Survey Authority against the title of a piece of real property stating that the property is the subject of litigation and that ownership of the property may change as a result. In family law, a CPL is used to protect the interest of a spouse in a piece of property by prenting the property from being sold or remortgaged.<br /> ;chattel:An item of personal property. Distinguished from real property in the sense that chattels can be picked up and taken from place to place, but real property cannot.<br /> ;child support:Money paid by one parent to the other to help defray a child's living expenses. Also known as maintenance and palimony.<br /> ;Child Support Guidelines:A federal regulation which sets out the amount of child support a party must pay based on the party's income and the number of children involved and provides rules about the calculation of child support. The tables that set out the amount of support payable differ from province to province.<br /> ;claim:The assertion of a legal right to something, whether to an order or to a thing. the relief sought by one party against the other.<br /> ;claimant:The person who starts a legal action seeking orders against another party, the respondent. Formerly known as the plaintiff.<br /> ;clear title:Ownership of property free of any debt registered against the property. For example, owning a piece of land without a mortgage, or owning a car without a car loan.<br /> ;coercion:The use of force or intimidation to compel someone to do something. interference with another person's freedom of choice. For example, saying "sign this separation agreement or you'll never see your children again."<br /> ;cohabitation:Living with another person in a "marriage-like relationship" while legally unmarried. shacking up. living in sin. playing house.<br /> ;collusion:An agreement to do something with another person towards an illegal goal.<br /> ;common law:This phrase has a number of different meanings such as 1) a legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, 2) the system of justice used in non-criminal cases in all provinces except Quebec, and 3) the legal status of an unmarried couple who qualify as "spouses" under any particular law, such as the ''Family Relations Act''.<br /> ;competent:In law, having the capacity or ability or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of his or her evidence. A court which has competent jurisdiction has the authority to deal with the issues in a case and has authority over the parties to that case.<br /> ;conclusion of fact:A judge's decisions as to what the facts of a case are, based on the evidence he or she has heard and his or her evaluation of the credibility of the witnesses giving that evidence.<br /> ;conclusion of law:A judge's decision about what law applies in a particular case and his or her conclusion about how that law should be applied.<br /> ;concur:To agree.<br /> ;concurrent:Happening or existing at the same time. Two courts of "concurrent jurisdiction," for example, each have the jurisdiction to hear the same case and deal with the same issues.<br /> ;condonation:Forgiving a wrongful act. In family law, usually refers to the forgiving of an act of adultery or cruelty and the continuation of the parties' relationship as it was before.<br /> ;conjugal rights:A quaint and somewhat outdated idea describing a spouse's right to enjoy the benefits of married life, including the comforts of living with his or her spouse, sharing meals, emotional comfort and sympathy, mutual confidence and privacy, sex and so forth.<br /> ;connivance:Causing or permitting a wrongful act. In family law, usually refers to conspiring toward adultery as a ground of divorce to trick the court into making a divorce order.<br /> ;consanguinity:Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity set out in the ''Marriage (Prohibited Degrees) Act''.<br /> ;consent:Agreement. making a choice of one's own free will after giving the matter thought.<br /> ;consent order:A court order that all parties to an action agree the court should make. Consent orders may be interim or final.<br /> ;consortium:The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other.<br /> ;conspiracy:The agreement and intention of two or more people to do an unlawful act, or to do a lawful act by unlawful means. A "conspirator" is a party to a conspiracy.<br /> ;constitution:The rules which set out the political and legal organization of a state. The power and authority of the government, the legislature and the court stem from the constitution. In Canada, there are two primary constitutional documents, the ''Constitution Act, 1867'' and the ''Constitution Act, 1982''. The ''Charter of Rights and Freedoms'' is part of the ''Constitution Act, 1982''.<br /> ;construction:In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one parent "will have the children on Monday, Tuesday and Friday" but didn't say anything about the other parent, the agreement would likely be constructed to mean that the other parent would have the children on the days not mentioned.<br /> ;constructive trust:In family law, a trust relationship imposed to remedy the unjust enrichment of one party.<br /> ;contempt of court:Doing something or failing to do something which impairs the administration of justice or respect for the court’s authority. For example bribing a witness, disobeying a court order or misleading the court. Contempt of court is a civil offence as well as a criminal offence.<br /> ;contract:An agreement by two or more people which gives them enforceable obligations towards each other, usually in writing. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must change hands.<br /> ;contract law:The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are not always applicable to family law agreements.<br /> ;corollary relief:In an action for an order for divorce this term refers to all relief apart from the divorce order. For example, one might sue for a divorce as well as custody of the children. the part of the action relating to custody is the corollary relief.<br /> ;costs:A party's legal expenses stemming from a legal action, calculated under the rules of court. A party's costs are not the same as his or her lawyer's account. The party to an action who is more successful than the other is usually awarded his or her costs of the action.<br /> ;Counterclaim (Form F5):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a Respondent against a Claimant.<br /> ;Court of Appeal:The highest level of court in British Columbia, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and all provincial tribunals.<br /> ;covenant:A promise to do or not do a particular thing.<br /> ;cross-examination:The portion of a trial where a party asks questions of a witness presented by the other party to challenge his or her evidence and truthfulness. The questions asked of the witness must be relevant to the issues and may be "leading," that is, the question may suggest the answer.<br /> ;custody:In family law, this term traditionally refers party with whom the child lives and at whose home the child eats and sleeps for the majority of the time. The concept of "primary residence" is overtaking this meaning of custody, particularly in circumstances where the parties share joint custody and joint guardianship of the children.<br /> ==D==<br /> ;damages:An award of money payable by one party to the other, usually as compensation for loss or harm suffered as a result of the other party's actions or failures to act. In family law, damages may be awarded to remedy a tort claim or a breach of contract.<br /> ;debt:A sum of money or an obligation owed by one person to another. A "debtor" is the person responsible for paying a debt. a "creditor" is the person to whom the money is owed.<br /> ;decision:In law, a judge's conclusion after hearing the argument and considering the evidence presented at a trial or an application. a judgment. A judge's decision will include both his or her conclusions about the relief claimed as well as his or her findings of fact. A written decision is called the judge's Reasons for Judgment.<br /> ;declaration:A pronouncement of the court as to a fact or a state of affairs. This should not be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something.<br /> ;deem:To make an assumption that one thing follows from another. a presumption of a fact based on proof of other facts.<br /> ;de facto:A Latin phrase meaning "in fact."<br /> ;default:A failure to do something which is either optional or mandatory, such as a failure to reply to an application or a claim within the time limits set out in the rules of court.<br /> ;default Judgment:A judgment obtained by a claimant following the respondent's failure to reply to his or her claim within the proper time.<br /> ;defence:A reply, rebuttal or answer to a claim. A respondent's defence may attack the claimant's claim on the truth of the facts alleged by the claimant, the law applicable to the case, or both.<br /> ;denial:Defending a claim by denying the truth of a fact supporting the claim. a rejection of the truth of facts alleged.<br /> ;de novo:A Latin phrase meaning "anew;" renewed, from the beginning. An application or trial heard de novo is heard for a second time without considering the result of the first hearing.<br /> ;desertion:The continued absence of one spouse from cohabitation with the other. prolonged separation between spouses. This is an old ground of divorce which has been replaced in the modern ''Divorce Act'' with simple separation for a period of not less than one year.<br /> ;desk order divorce:A process in which a divorce, with or without corollary relief, is obtained following the failure of the respondent to file a Response to Family Claim. A desk order divorce does not require an oral hearing and is the cheapest way to obtain a divorce order.<br /> ;disability:In law, the inability to do certain things, like entering into a contract or bringing a law suit. Legal disabilities include insanity and being under the age of majority.<br /> ;discovery:Disclosure and production are a stage of the litigation process in which each party advises the other of the documents in his or her possession which bear on the issues in the action, and those documents are exchanged. Discovery means the formal examination of a party under oath, outside of court, about the matters at issue in an action.<br /> ;dismiss:In law, a judge's decision to end a claim or dismiss an action with or without trial. An application or appeal which is dismissed has been heard and rejected by the court.<br /> ;divorce:The legal termination of a valid marriage by an order of the court, ending the marital relationship and the conjugal obligations of each spouse toward the other.<br /> ;domicile:The place where one has one's permanent home, where one lives most of the time. sometimes the place where one intends to have a permanent home. A party's domicile may have an impact on the jurisdiction of the court to hear an action or deal with certain claims made in an action.<br /> ;dower:The entitlement of a wife to a portion on her husband's estate on his death. This common law entitlement has been extinguished and is replaced by certain provisions of the ''Estate Administration Act'' and the ''Wills Variation Act'', which grant both spouses certain rights on the death of the other.<br /> ;dowry:In some cultures, the property and/or chattels brought into the marriage by the wife, or, the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and claims for dowry will not normally be enforceable.<br /> ;draft:In law, a non-final version of a document. an order prepared following judgment to be submitted to the court for its approval. To prepare or "draw" a legal document.<br /> ;duress:Forcing someone to do something, usually by psychological or emotional pressure, which that person is not obligated to do.<br /> ;duty:A legal obligation to do or not do something, whether under the common law or pursuant to legislation.<br /> <br /> ==E==<br /> ;encumbrance:A debt secured against property, such that a default on repayment gives the creditor a right to possess or sell the encumbered property.<br /> ;enticement:In family law, intentionally causing a wife to leave her husband or intentionally interfering with a married couple's consortium, an old common law cause of action. The ''Family Relations Act'' expressly forbids legal actions based on enticement.<br /> ;error of law:A ground of appeal claiming that the trial judge did not apply the law correctly in reaching his or her decision.<br /> ;estate:The sum of the property owned by a person or in which he or she has an interest.<br /> ;evidence:Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence.<br /> ;examination-in-chief:The portion of a trial where a party asks questions of a witness they have presented to elicit evidence of certain facts. The questions asked of the witness cannot be "leading," that is, the answer cannot be suggested in the question.<br /> ;examination for discovery:The cross-examination of a party under oath about the matters at issue in the action conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, under certain circumstances, be used at trial.<br /> ;execute:In contract law, to complete or accomplish. to complete the legal formalities necessary to give a document validity. One executes a separation agreement, for example, by signing it in the presence of a witness.<br /> ;ex parte:A Latin phrase meaning "on behalf of one party," but used to describe applications being made without notice being given to the other party. Such applications are only heard in urgent situations, for example, if a spouse has threatened to flee with the children or hide assets.<br /> ;expert evidence:Opinion evidence given by an expert at trial. Opinion evidence is evidence about what someone thinks or believes rather than something known as a fact, and is generally not admissible at trial except from experts. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists.<br /> <br /> ==F==<br /> ;family law agreement:An agreement between two persons involved in a spousal or parental relationship which deals with their respective rights and obligations to one another and which the parties expect will be enforceable in court. These agreements include marriage agreements (prenuptial agreements), cohabitation agreements (living together agreements) and separation agreements.<br /> ;family assets:Assets owned by either or both married spouses and subject to division between them on the breakdown on their marriage. An asset owned solely by one spouse may be found to be a family asset where it is used for a family purpose. Family assets are presumed to be divided between the spouses on an equal basis under the Family Relations Act.<br /> ;Financial Statement:A court form (Form F8 in the Supreme Court and Form 4 in the Provincial Court) used to set out a party's income, expenses, assets and debts on the party's oath or affirmation.<br /> ;finding:A conclusion made by a judge, determining a point of law or a disputed fact.<br /> ;finding of fact:A judge's conclusion about the facts of a case, made after hearing all the evidence.<br /> ;forum:In law, a court or level of court, sometimes used in reference to the court's jurisdiction.<br /> ;free and clear title:Real property owned without encumbrances on the title and without any other debt or obligation attached to the property.<br /> ;frustration:In contract law, an inability to complete or fulfill a contract, whether intentional or unintentional. the intentional intereference with the rights of another under a contract or court order. A contract which cannot be completed or fulfilled is said to be "frustrated."<br /> <br /> ==G==<br /> ;gainful employment:Steady work for pay. In family law, a dependant spouse usually has a duty to find gainful employment and become self-sufficient following the breakdown of a relationship. Under certain circumstances, a failure to find gainful employment may justify the termination of spousal support.<br /> ;gift:A voluntary transfer of property from one person to another, without expectation of payment or reward. True gifts do not usually qualify as family assets, making them exempt from division between spouses.<br /> ;good faith:Acting in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase ''bona fide''.<br /> ;guardian:A person charged with the care of someone under a legal disability. In family law, a guardian has the right to instruct and receive information from the people involved with the care of his or her child, such as doctors and teachers, the obligation to make arrangements for the necessities of the child’s life, and the right and obligation to make important decisions about how that child grows up.<br /> ;guardianship:In family law, being charged with the legal care of a child's person and estate.<br /> <br /> ==H==<br /> ;hearing:In law, a proceeding before a judge to determine questions of law and/or questions of fact, whether the hearing of an application or the hearing of a trial.<br /> ;hearsay:Evidence of which a witness has no direct, personal knowledge. For example, saying that "Pierre told me that Mitsou trashed the car" or "Mitsou told me she trashed the car." Hearsay evidence is not admissible at trial as a witness can only properly give evidence of those facts of which he or she has direct knowledge. Hearsay evidence may be allowed on interim applications, as long as the source of the hearsay information is identified.<br /> ;heirs:In estate law, the people intended or expected to receive property or other benefit under a will. a person's direct lineal descendants.<br /> <br /> ==I==<br /> ;indemnify:To repair harm or loss suffered by another.<br /> ;infant:A person not yet of the age of majority. a minor. a child.<br /> ;inheritance:Real or personal property received as a result of the provisions of a will. Inheritances do not usually qualify as family assets subject to division between spouses.<br /> ;injunction:An order that someone not do or cease doing a thing. a restraining order. In family law, injunctions are often sought to stop someone from doing something with the children, disposing of assets or harassing someone else.<br /> ;in loco parentis:A Latin phrase meaning "in the place of a parent;" acting as a parent in the place of the child's natural parent or intending to stand in the place of that parent. A person found to be in loco parentis to a child may be responsible to pay child support for that child.<br /> ;in personam:A Latin phrase meaning "against the person;" a right against a person as opposed to a right involving a thing.<br /> ;in rem:A Latin phrase meaning "against the thing;" refers to a right against objects or property rather against a person.<br /> ;inspection of documents:The right of a party to an action to look at and copy documents held by the other party which relate to issues in the action. part of the discovery and production process.<br /> ;instructions:In law, the directions given by a client to his or her lawyer about the conduct of a case.<br /> ;interim application:An application made after the commencement of a legal action but before its conclusion, usually for temporary relief until the final resolution of the matter at trial or by settlement before trial. In family law, interim applications are useful to establish parenting arrangements and support obligations on a quick, although temporary, basis.<br /> ;interim order:Any order made prior to the final resolution of a legal action at trial or by settlement before trial. a temporary, rather than permanent or final order.<br /> ;interlocutory:Literally, "between speakings;" refers to interim applications brought or orders made after the commencement of a legal action but before its conclusion.<br /> ;interrogatories:Written questions presented by one party which must be answered by other party in the form of an affidavit. part of the discovery process.<br /> ;intestate:Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Estate Administration Act''.<br /> ;in the alternative:A phrase used to indicate secondary relief or a secondary ground of relief, usually presented as an option to the primary relief or primary ground of relief claimed. As in "I'd like your Mustang, but, in the alternative, I'll take your Pinto."<br /> ;in trust:A phrase describing property held by one person for the benefit of another person who is ultimately eneitled to the property. Money held in trust is held in a lawyer's bank account on the lawyer's promise not to use that money except as may be agreed.<br /> <br /> ==J==<br /> ;joint account:A bank account shared by more than one person normally with an equal entitlement to deposit or withdraw, with or without the consent of the other account holders.<br /> ;joint custody:A situation in which both parents together have custody of their children.<br /> ;joint guardianship:A situation in which both parents together have guardianship of their children. Should one parent die in such circumstances, the other parent becomes the sole guardian of the children.<br /> ;joint tenancy:A form of ownership where two or more people co-own a thing. Each joint tenant’s interest in the property is not distinct, that is, it cannot be separated out from the other tenants' interests. When one joint tenant dies, the other tenants continue to own the whole of the property between them.<br /> ;judge:A person appointed by either the federal or provincial government, with the authority to hear and decide legal actions in an impartial manner, independent from influence by the government, whose decisions are binding upon the parties to an action.<br /> ;final judgment:A decision which completely and finally determines some or all of the issues in a legal action, following which there is no other recourse open to a dissatisfied party except an appeal.<br /> ;jurisdiction:This word has a number of meanings such as 1) the authority of the court to hear an action and make orders, 2) the limits within which a court must operate, 3) the limits of the authority of a particular judicial official, 4) the authority of a government to make legislation as determined by the constitution, and 5) the geographic location of a court.<br /> ;justice of the peace:A court official appointed by the provincial government with a defined decision-making authority.<br /> <br /> ==L==<br /> ;Land Title and Survey Authority:The department of the provincial government responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may lie against a parcel of property.<br /> ;lawyer's fees:The fees a lawyer charges his or her client pursuant to their retainer agreement, for the lawyer's services. Most lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include disbursements, which are costs incurred by the lawyer for such things as couriers, filing documents in court and photocopying.<br /> ;leading questions:Question asked of a witness which suggest their answers, normally asked during cross-examination, such as "You've never worked a day in your life, have you?"<br /> ;lease:An agreement such that the owner of a piece of property (a car or an apartment, for example) gives up the right to occupy and use that property in exchange for something else like money. A "lessor" is the person who retains ownership of the property. a "lessee" is the person who gets the right of possession in exchange for payments to the lessor.<br /> ;legal description:With respect to real property, the full formal identification of a particular piece of property by its lot number, district lot number, plan number and land district, rather than by its street address.<br /> ;legislate:To create, amend and revoke written laws governing things, people and places. a right of the provincial and federal governments to pass and rescind laws derived from the Constitution.<br /> ;legislation:An act, a statute. A written law created by a government.<br /> ;litigant:A party to a legal action, such as a Claimant or Respondent in the Supreme Court, or an Applicant or Respondent in the Provincial Court.<br /> ;lay litigant:A party to a legal action who is not represented by a lawyer and acts on his or her own behalf. "Lay" in this context means amateur.<br /> <br /> ==M==<br /> ;maintenance:In family law, usually refers to payments made by one party to the other to defray that person's daily living expenses or for the living expenses of the a child. also known as support.<br /> ;marriage:A legal and emotional relationship between two people, solemnized by a religious functionary or marriage commissioner, giving rise to certain mutual rights, benefits and obligations.<br /> ;marriage-like relationship:A quality of a romantic relationship indicating the nature of their parties' committment to each other as lovers and partners. A legal requirement for a couple to be considered common-law spouses. A couple in marriage-like relationship live together, share chores together, describe themselves as a couple, and their friends and family think of them as a committed couple.<br /> ;master:A provincially-appointed judicial officer with the limited authority deal with certain issues and certain court processes, including interim applications.<br /> ;material:In law, relevant, important. A "material fact" is a fact relevant to a claim.<br /> ;material<sup>def2</sup>:The term for the collective set of all documents, such as court forms, written argument, case authorities, and any exhibits for evidence, submitted by a party in the course of an adjudicative proceeding. <br /> ;material (def3): Third definition test for material<br /> ;matrimonial home:In family law, the dwelling occupied by a family as their home.<br /> ;mediation:A dispute resolution process in which a third party with special training, a mediator, helps the parties to a dispute find a resolution to that dispute.<br /> ;memorandum of understanding:A document setting out the essential terms of an agreement reached between two or more people, often used as a guide to the negotiation of a final, more detailed and more complete agreement.<br /> ;minutes of settlement:A document setting out the essential terms of an agreement or settlement reached between two or more people, produced after negotiations and signed by the parties and their lawyers to record the agreements reached to date. Minutes of Settlement are normally used as the foundation of a future final order or agreement, and are often attached to that order or agreement as a schedule.<br /> ;misrepresentation:Acts or words tending to give a false impression as to the true state of affairs.<br /> ;mistake:In contract law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error, including entry into an otherwise binding contract.<br /> ;mortgage:The conditional transfer of ownership in a piece of property to someone else, while retaining possession of the property, to secure a loan. The party to whom the title is given, the mortgagee, usually a bank, is allowed to register the title of the property in his or her name if the person making the transfer, the mortgagor, fails to repay the loan.<br /> ;motion:In law, an application to the court for an order, usually brought after the commencement of an action but before its conclusion following trial or by settlement before trial.<br /> <br /> ==N==<br /> ;natural parent:The biological parent of a child, as distinguished from adoptive parents and stepparents.<br /> ;negotiate:In family law, the process by which a contract or agreement is formed, usually consisting of the mutual compromise of the parties' original positions, through discussion and bargaining, to the extent tolerable by each party.<br /> ;'''non compos mentis''':A Latin phrase meaning "not of sound mind." A person who is ''non compos mentis'' is under a legal disability.<br /> ;notary public:A person authorized to take oaths and affirmations, and execute or certify certain documents. All lawyers are notaries public in addition to being barristers and solicitors.<br /> ;Notice of Appeal:A legal document required by the rules of court which notifies a party of the other party's intent to appeal a decision.<br /> ;Notice of Family Claim (Form F3):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person bringing a family law case, the court the claim will be heard in and the person's Address for Service.<br /> ;Notice of Application (Form F31):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person making an application, the grounds on which that relief is claimed and the date on which the application will be heard.<br /> ;null and void:Invalid. A nullity. Of no legal force and effect. Curiously, null and void mean the same thing.<br /> <br /> ==O==<br /> ;oath:An affirmation of the truth of a statement by one's faith in a god. Someone making an affidavit may give his or her evidence in that affidavit under oath. a witness giving oral evidence may give his or her evidence in court under oath.<br /> ;obligation:A duty at law, whether contractual, moral or legal in origin, to do or not do something.<br /> ;offer:In contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement proposal.<br /> ;offer to settle:A document setting out a formal offer made by one party to the other prior to the trial of an action describing the terms on which the party is prepared to settle the action without trial. Offers to settle can have important consequences, particularly with respect to the award of costs if the offer is close to what the judge decides following trial.<br /> ;officer of the court:Any official of the court, including lawyers, court clerks and judges.<br /> ;omission:A failure to do something, whether intentional or unintentional.<br /> ;order:A mandatory direction of the court, binding upon the parties to a legal action. An "interim order" is a temporary order obtained by an inteirm application. A "final order" is a permanent order and the product of either the trial of the action or the settlement of the parties before trial, following which the only recourse open to a dissatisfied party is to appeal the decision. Orders made with the agreement of the parties are called "consent orders."<br /> ;Ownership:A usually exclusive right to possess and use a thing.<br /> <br /> ==P==<br /> ;the doctrine of paramountcy:The rule that federal legislation on a subject is superior to and takes precedence over any provincial legislation on the same subject.<br /> ;'''parens patriae''':A Latin phrase meaning "parent of the country," the court's inherent jurisdiction to deal with issues concerning persons under legal disabilities.<br /> ;parent:In family law, the natural or adoptive father or mother of a child. may also include stepparents, depending on the circumstances and the applicable legislation.<br /> ;party:In law, a person making or defending an action. someone either asserting a claim in a legal action or subject to a claim made in an action.<br /> ;paternity test:A scientific test performed to determine the parentage of a child, usually performed by DNA testing of the blood or saliva of the alleged parent(s) and the child.<br /> ;peace officer:A person having a duty to enforce the law as a result of his or her employment, including police officers as well as sheriffs, customs officers, and mayors.<br /> ;pecuniary:Relating to money.<br /> ;perjury:Intentionally lying to the court while giving evidence under oath or affirmation. also applies to lying in a sworn document, such as an affidavit. This is an offence.<br /> ;personal property:Chattels, goods. property other than real property.<br /> ;Petition (Form F73):A court document used to commence specific kinds of legal action. The person bringing the action is the Petitioner and the person against whom the action is brought is the petition respondent. An action can only be started by a Petition in certain circumstances. most often actions are started with a Notice of Family Claim.<br /> ;pleadings:A legal document setting out either a claim or a defence to a claim. Usually, the pleadings consist of the Notice of Family Claim, Response to Family Claim and Counterclaim.<br /> ;possession:In law, the right to have the control and use of a thing, but not necessarily the right to own that thing.<br /> ;precedent:This word has a number of meanings, including 1) the historic decisions of the courts, 2) the principle that those decisions are binding on subsequent judges hearing cases of a similar nature or in similar circumstances, and 3) templates or sample documents used to draft a new document.<br /> ;premises:In real property law, a piece of property and a building situated on it, usually, the area of the property surrounding a building on that property. Also, the foundation of a logical argument.<br /> ;'''prima facie''':A Latin phrase meaning "first face," refers to a fact which ought to be obvious.<br /> ;privilege:In law, the duty a lawyer has to keep his or her client's information confidential, including communications between the lawyer and client and advice given to the client. A lawyer cannot reveal privileged communications even to the court, except in certain usual circumstances.<br /> ;proceeding:In law, the whole of the conduct of a legal action, from beginning to end, and all steps in between. may also be used to refer to a specific hearing or trial.<br /> ;proof:Evidence which establishes or tends to establish the truth of a fact. also, the conclusion of a logical argument.<br /> ;'''quantum meruit''':A Latin phrase meaning "the amount of deserved." Refers to payment for a service according to the value of the service rendered.<br /> <br /> ==Q==<br /> ;quash:To set aside or vacate an order or judgment.<br /> ;question of fact:An issue arising where the parties disagree about a material fact relevent to a legal action, when only one party can be right. A court's decision about what the facts of a case are is a "finding of fact."<br /> ;question of law:An issue about which law should be applied in a legal action, or how the law should be applied in the circumstances of a particular action. A court's decision about how the law should be applied to the facts of case or about what the law is in a particular situation is a "finding of law."<br /> <br /> ==R==<br /> ;real property:A piece of land and the buildings on that land. Real property is different from chattels or other personal property because it cannot be moved.<br /> ;rebut:In law, to reply to an argument, a statement of fact or a legal presumption by presenting argument or evidence to the contrary. providing evidence which tends to disturb a presumption.<br /> ;registrar:An officer of the court with the power to make certain decisions, including the terms of a judge's order. also, an officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings.<br /> ;court registry:A central office, located in each judicial district, at which the court files for each legal action brought in that district are maintained, and at which legal documents can be filed, searched and reviewed.<br /> ;regulations:A kind of lesser legislation giving supplemental rules to a particular act. Regulations are created and amended by the government, not the Legislature or Parliament.<br /> ;relief:In law, an order sought by one party to a legal action as set out in his or her pleadings. Where more than one remedy or order is sought, each remedy sought is called a "head of relief."<br /> ;reply:In law, an answer or rebuttal to a claim made or a defence raised by the other party to an action.<br /> ;requisition:A court form (Forms F17, F29 & F35) prescribed by the Supreme Court Family Rules with which a party asks the court registry staff to perform a task (like searching a file) or asks the registrar to make a procedural order (like an order that a party be served substitutionally).<br /> ;residence:The place a person permanently lives. This is different from a person's "domicile" in that a person's residence is more concrete and less changeable in nature. A person's residence can have an impact on the court's authority to hear and decide a legal action.<br /> ;respondent:The person against whom a claim has been brought. Formerly known as the defendant.<br /> ;Response to Family Claim (Form F4):A legal document required by the Supreme Court Family Rules setting out Respondent's position on each of the orders sought by the Claimant in the Notice of Family Claim as well as the Respondent's Address for Service.<br /> ;restraining order:An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of assets, and stopping someone from harassing someone else.<br /> ;resulting trust:In family law, a finding by a court that one party holds property in trust for another as a result of the parties' intention to make a trust. A trust relationship inferred by operation of law.<br /> ;retainer:This word means several things such as 1) the act of hiring of lawyer, 2) the money paid to a lawyer to hire his or her services, and 3) the terms and extent of a lawyer's work on behalf of a client.<br /> ;review:In law, the re-examination of a state of affairs, an order or an agreement, usually to determine whether the terms of an agreement or order are still appropriate. A separation agreement or an order may state that a particular term is "reviewable" at a certain date. On that date the circumstances of each party are re-examined to determine whether the term remains appropriate, and whether the term should be cancelled, changed or let alone.<br /> ;rules of court:A set of codified guidelines governing the court process and litigation generally, and providing the official court forms required. The rules of court are particular to each level of court.<br /> <br /> ==S==<br /> ;sale:An agreement to transfer the ownership of property from one person to another in return for something else, like money or another property.<br /> ;separation agreement:A contract between spouses, partners or parents, intended to resolve all or some of the issues outstanding between them as a result of the breakdown of their relationship, and intended to guide the parties in their dealings with one another thereafter.<br /> ;personal service:The personal delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by physically handing the document to the party and verifying the recipient's identity.<br /> ;ordinary service:The delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by transmitting the document to one of the party's Addresses for Service.<br /> ;Affidavit of Service (Form F15):An affidavit in a form prescribed by the Supreme Court Family Rules sworn by the person who has personally served someone with legal documents, stating that the party was served and describing the circumstances in which service was accomplished.<br /> ;substituted service:Service in a way other than service as prescribed by the rules of court, in the manner and on the conditions imposed by an order of the court.<br /> ;settlement:A resolution of a legal action or of one or more matters at issue in that action, made by the agreement of the parties to that action, as opposed to resolution of the matter by the court following a trial or hearing.<br /> ;spouse:According to the ''Divorce Act'', a spouse is a person who is legally married to someone else, whether of the same or a different gender. Under the ''Family Relations Act'', this term also includes unmarried couples who have lived together in a marriage-like relationship for a period of at least two years.<br /> ;spousal support:Money paid by one spouse to the other to help cover the recipient's living expenses. Also called alimony and maintenance.<br /> ;'''stare decisis''':A Latin phrase meaning "standing by the thing decided," refers to the common law principle that courts are obliged to follow the decisions of the courts before them on the same subjects.<br /> ;'''status quo''':A Latin phrase meaning "the state that was," refers to whatever circumstances or conditions previously existed and, usually, had existed for some time.<br /> ;subpoena:A legal document issued either by the court or by a party which compels a witness to attend court to give evidence, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court.<br /> ;suit:A law suit, an action, a court proceeding, a case. A claimant's claim against a respondent.<br /> <br /> ==T==<br /> ;taxation:A hearing in which a client challenges a lawyer's bill and a lawyer proves his or her bill. A taxation hearing is held before a master or a registrar who examines the account to determine whether the account is fair. The master or registrar assesses the bill and issues a Certificate of Fees stating what amount is properly payable by the client or refundable by the lawyer.<br /> ;tenancy in common:A kind of ownership of a property by two or more persons such that each owner has a distinct and severable share in the property. A tenant in common may chose to sell his or her share in that property independently from other owners.<br /> ;testator:In estate law, a person who has made a will used in reference to that will. The delightful feminine form of this word is "testatrix."<br /> ;testimony:A statement made by a witness to a court as evidence, or made in an affidavit, made under oath or affirmation as to the truth of the statement.<br /> ;third party:A person named in an action or joined to an action who is neither the Claimant nor the Respondent. A third party may be joined to an action where the Respondent believes that the person has some responsibility for the cause of action.<br /> ;title:In law, having legal ownership of a thing. a document evincing legal ownership of a thing.<br /> ;trial:The testing of the respective claims and defences of the parties to an action through the presentation of evidence and legal argument at a formal hearing before a judge with the jurisdiction to hear the matter and to make a final, binding determination of the claims.<br /> ;trust:In law, a form of possession in which one person holds, deals with and is responsible for property for the benefit of another. A "trustee" is the person who holds the property in trust for the other person. the "beneficiary" is the person for whom the property is held.<br /> ;trustee:One who holds property in trust for the benefit of another.<br /> <br /> ==U==<br /> ;unjust enrichment:Money or benefits unfairly gained by one person at a corresponding expense or loss to another.<br /> ;unlawful:Acts or omissions made contrary to legislation or the common law.<br /> <br /> ==V==<br /> ;vacate:The setting aside or quashing of a decision or order, sometimes effective on the date of the vacation, sometimes with a retroactive effect as if the original order had never been made.<br /> ;validity of marriage:For a marriage to be valid, the spouses must be: not within the prohibited degrees of consanguinity, over the commmon law age of puberty, unmarried at the time of the marriage, and capable of understanding the meaning of marriage.<br /> <br /> ==W==<br /> ;waive:In law, to give up a right or entitlement. to give up the opportunity to assert a right or enforce an entitlement.<br /> ;waste:In law, intentionally or unintentionally allowing the value of a piece of property to diminish through carelessness, neglect or purposeful harm.<br /> ;will <sup>def</sup>:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;Will:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;witness:A person giving evidence on the person's oath or affirmation as to the truth of the statements made.</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Terminology&diff=548 Terminology 2012-12-24T20:00:22Z

<p>209.17.147.129: /* M */</p> <hr /> <div><div class="noautonum">__TOC__</div><br /> ==A==<br /> ;ab initio:A Latin phrase meaning "from the beginning." A marriage which is unlawful is void ''ab initio'', as if it never happened.<br /> ;abduction:The taking of a person by force or fraud. In family law, the taking of a child contrary to a court order or without the other parent's permission. In certain circumstances, this may also be a criminal offence.<br /> ;abrogate:To revoke or annul. One "abrogates" a contract, like a family agreement, by doing something expressly contrary to the agreement. One party's act of abrogation may not void the agreement, but will give the other party a cause of action.<br /> ;access:A parent's time with their children following the breakdown of the parent's relationship. Access usually refers to the visits of a child with the parent who doesn't have the child's primary residence.<br /> ;account:In law, a lawyer's bill to his or her client. Also, a statement of one person's view of events.<br /> ;Act:A law passed by a government, also called "legislation" or a "statute." Also, the intentional doing of a thing.<br /> ;action:A law suit. or a legal proceeding in which one party sues another for a remedy or specific relief. In family law, an action for divorce is a court proceeding in which the claimant sues the respondent for the relief of an order for the parties' divorce.<br /> ;address for service:The address at which a party must accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addreses for service may include postal addresses, fax numbers and email addresses.<br /> ;adoption:In family law, the act or process of one person taking another person's natural child as his or her own. The child then becomes the adopting parent's legal child as if the child were the adopting parent's natural child, and the child's biological parent loses all rights and obligations with respect to the child.<br /> ;''Adoption Act'':A provincial law dealing with entitlement to adopt and the adoption process.<br /> ;adoptive parent:A person who has formally assumed the status of parent to a child who is not his or her biological offspring. <br /> ;adultery:The act of a married person voluntarily engaging in sexual intercourse with a person other than his or her spouse; cheating; playing around; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act.<br /> ;advance:In family law, this usually refers to one party obtaining a share of his or her portion of the family assets before those assets have been divided, whether following trial or a final settlement of the matter.<br /> ;advocate:A lawyer; sometimes a person other than a lawyer who presents and argues a case in court on behalf of a party to the proceeding. Also, to argue a debated position.<br /> ;affidavit:A legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally under oath. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit about the truth of its contents. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements orally before a judge at trial.<br /> ;affirm:To promise that a statement is true. When someone "swears" to tell the truth, they are considered to be taking an oath on their faith in a god. Affirming is a substitute for swearing something before a god, most often employed where person making the statement is an atheist or under a religious proscription from making oaths.<br /> ;age of majority:The age at which someone becomes a legal adult with the full capacity to act on their own, independent of their parents, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority.<br /> ;agent:In law, someone acting on behalf of someone else, with that person's express permission and normally their express direction.<br /> ;alias:A name by which people know you other than your legal name.<br /> ;alienation:In family law, the actions or statements of a parent which tend to sever, damage or harm the child's relationship with or affections for the other parent.<br /> ;allegation:An assertion that a certain set of facts is true, such as "on Monday, I had soup for lunch" or "Bob drives a blue Camaro." Also called an allegation of fact or a statement of fact.<br /> ;alternative dispute resolution:A phrase referring to processes for the resolution of disputes outside the court system, including mediation, negotiation and collaborative law. In family law, the purpose of ADR is to offer a less conflict-oriented and less expensive way to resolve a dispute than litigation.<br /> ;amend:To change or alter a pleading or document which has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "Amended Counterclaim."<br /> ;amicus curiae:A Latin phrase meaning "friend of the court." Usually refers to a lawyer who does not act for any of the parties and assists or brings relevant information to the attention of the presiding judge.<br /> ;annulment:A declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occured. <br /> ;answer:A response to a claim or an allegation of fact. Usually refers to legal documents used to reply to the allegations or claims of another party, such as a Response to Family Claim, an Application Response or a Reply.<br /> ;appeal:An application to a court for a review of the decision of a lower court and, hopefully, the reversal of that decision. A decision of a judge of the Supreme Court of British Columbia is, for example, appealed to the Court of Appeal for British Columbia.<br /> ;applicant:The party to an action who brings an application to court in the course of that action, usually an application for an interim order.<br /> ;application:A request to the court that it make an order for specific relief, usually on an interim or temporary basis.<br /> ;application respondent:The party to an action against whom an application has been brought in the course of that action. the party replying to the applicant's application, usually an application for an interim order.<br /> ;Application Response (Form F32):A legal document required by the Supreme Court Family Rules setting out the application respondent's position on the relief claimed in an application and the grounds on which that relief is opposed.<br /> ;arbitrator:A person selected by the parties to a dispute to resolve their dispute outside the court process and to whom the parties give the authority to impose a settlement.<br /> ;arbitration:A dispute resolution process subject to the principles of natural justice in which the parties pick the person who will resolve their dispute and agree to be bound by the arbitrator's decision.<br /> ;argument:In law, persuasion by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence about the facts of a case, or to a written brief of argument.<br /> ;arrears:Money owing for child support or spousal support as a result of an agreement or a court order which has not been paid.<br /> ;assess:To determine the value or amount of something. A lawyer's bill may be assessed by a registrar to determine the proper amount the client should pay. a piece of property may be "assessed" to determine its likely sale price.<br /> ;assign:To transfer an interest or right in something, such as property or a cause of action, to someone else.<br /> <br /> ==B==<br /> ;bad faith:Intentionally misleading someone else, whether by doing or not doing something. acting in a manner contrary to one's actual intention. an intentional failure to act honestly and openly. Also called ''male fides''.<br /> ;barrister & solicitor:A lawyer. a person licenced to practice law in a particular jursidiction. In England barristers do trial work and solicitors draft legal documents. In Canada, lawyers are both barristers and solicitors.<br /> ;beneficiary:The person for whose benefit a trustee holds property. the recipient or intended recipient of property passed in a will.<br /> ;bill:A lawyer's statement of account. Also, draft legislation presented by government to the Legislature or Parliament for approval.<br /> ;binding:A requirement or obligation to honour and abide by a contract or order of the court. for example, a judge's order is binding in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be followed by a lower court.<br /> ;bona fide:A Latin phrase meaning "in good faith;" doing something honestly and openly, without the intention of misleading or causing harm to someone else.<br /> ;breach of contract:Acting or failing to act in a manner contrary to the terms of the agreement. In family law, a breach of a term of a family agreement may give rise to a cause of action for the other party, but the breach is unlikely to allow the other party to treat the agreement as if it were cancelled or void.<br /> ;brief:A written argument. a memorandum of law. A brief is usually presented to a judge as a summary of an argument or a summary of the law on a particular issue.<br /> ;business assets:In family law, property owned by a spouse's company or corporation and not used for family purposes. Business assets are not usually subject to division between spouses, unlike family assets.<br /> ==C==<br /> ;Charter of Rights and Freedoms:A part of the ''Constitution Act, 1981'' which sets out the fundamental rights and freedoms shared by all Canadians, including the freedoms of religion and expression and the rights to life and liberty. Neither the federal nor the provincial governments can pass laws or act in ways contrary to the ''Charter''. Certain sections of the ''Charter'', particularly the portions dealing with equality rights, have a special importance for family law. For example, the way that the provincial ''Family Relations Act'' treats unmarried and married couples differently for the purposes of dividing their assets may be contrary to equality guarantees set out in the ''Charter''.<br /> ;case:A law suit. an action. a cause of action. an instance of litigation. Also refers to a historic decision of the court.<br /> ;certificate of pending litigation (CPL):A document filed in the Land Title and Survey Authority against the title of a piece of real property stating that the property is the subject of litigation and that ownership of the property may change as a result. In family law, a CPL is used to protect the interest of a spouse in a piece of property by prenting the property from being sold or remortgaged.<br /> ;chattel:An item of personal property. Distinguished from real property in the sense that chattels can be picked up and taken from place to place, but real property cannot.<br /> ;child support:Money paid by one parent to the other to help defray a child's living expenses. Also known as maintenance and palimony.<br /> ;Child Support Guidelines:A federal regulation which sets out the amount of child support a party must pay based on the party's income and the number of children involved and provides rules about the calculation of child support. The tables that set out the amount of support payable differ from province to province.<br /> ;claim:The assertion of a legal right to something, whether to an order or to a thing. the relief sought by one party against the other.<br /> ;claimant:The person who starts a legal action seeking orders against another party, the respondent. Formerly known as the plaintiff.<br /> ;clear title:Ownership of property free of any debt registered against the property. For example, owning a piece of land without a mortgage, or owning a car without a car loan.<br /> ;coercion:The use of force or intimidation to compel someone to do something. interference with another person's freedom of choice. For example, saying "sign this separation agreement or you'll never see your children again."<br /> ;cohabitation:Living with another person in a "marriage-like relationship" while legally unmarried. shacking up. living in sin. playing house.<br /> ;collusion:An agreement to do something with another person towards an illegal goal.<br /> ;common law:This phrase has a number of different meanings such as 1) a legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, 2) the system of justice used in non-criminal cases in all provinces except Quebec, and 3) the legal status of an unmarried couple who qualify as "spouses" under any particular law, such as the ''Family Relations Act''.<br /> ;competent:In law, having the capacity or ability or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of his or her evidence. A court which has competent jurisdiction has the authority to deal with the issues in a case and has authority over the parties to that case.<br /> ;conclusion of fact:A judge's decisions as to what the facts of a case are, based on the evidence he or she has heard and his or her evaluation of the credibility of the witnesses giving that evidence.<br /> ;conclusion of law:A judge's decision about what law applies in a particular case and his or her conclusion about how that law should be applied.<br /> ;concur:To agree.<br /> ;concurrent:Happening or existing at the same time. Two courts of "concurrent jurisdiction," for example, each have the jurisdiction to hear the same case and deal with the same issues.<br /> ;condonation:Forgiving a wrongful act. In family law, usually refers to the forgiving of an act of adultery or cruelty and the continuation of the parties' relationship as it was before.<br /> ;conjugal rights:A quaint and somewhat outdated idea describing a spouse's right to enjoy the benefits of married life, including the comforts of living with his or her spouse, sharing meals, emotional comfort and sympathy, mutual confidence and privacy, sex and so forth.<br /> ;connivance:Causing or permitting a wrongful act. In family law, usually refers to conspiring toward adultery as a ground of divorce to trick the court into making a divorce order.<br /> ;consanguinity:Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity set out in the ''Marriage (Prohibited Degrees) Act''.<br /> ;consent:Agreement. making a choice of one's own free will after giving the matter thought.<br /> ;consent order:A court order that all parties to an action agree the court should make. Consent orders may be interim or final.<br /> ;consortium:The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other.<br /> ;conspiracy:The agreement and intention of two or more people to do an unlawful act, or to do a lawful act by unlawful means. A "conspirator" is a party to a conspiracy.<br /> ;constitution:The rules which set out the political and legal organization of a state. The power and authority of the government, the legislature and the court stem from the constitution. In Canada, there are two primary constitutional documents, the ''Constitution Act, 1867'' and the ''Constitution Act, 1982''. The ''Charter of Rights and Freedoms'' is part of the ''Constitution Act, 1982''.<br /> ;construction:In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one parent "will have the children on Monday, Tuesday and Friday" but didn't say anything about the other parent, the agreement would likely be constructed to mean that the other parent would have the children on the days not mentioned.<br /> ;constructive trust:In family law, a trust relationship imposed to remedy the unjust enrichment of one party.<br /> ;contempt of court:Doing something or failing to do something which impairs the administration of justice or respect for the court’s authority. For example bribing a witness, disobeying a court order or misleading the court. Contempt of court is a civil offence as well as a criminal offence.<br /> ;contract:An agreement by two or more people which gives them enforceable obligations towards each other, usually in writing. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must change hands.<br /> ;contract law:The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are not always applicable to family law agreements.<br /> ;corollary relief:In an action for an order for divorce this term refers to all relief apart from the divorce order. For example, one might sue for a divorce as well as custody of the children. the part of the action relating to custody is the corollary relief.<br /> ;costs:A party's legal expenses stemming from a legal action, calculated under the rules of court. A party's costs are not the same as his or her lawyer's account. The party to an action who is more successful than the other is usually awarded his or her costs of the action.<br /> ;Counterclaim (Form F5):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a Respondent against a Claimant.<br /> ;Court of Appeal:The highest level of court in British Columbia, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and all provincial tribunals.<br /> ;covenant:A promise to do or not do a particular thing.<br /> ;cross-examination:The portion of a trial where a party asks questions of a witness presented by the other party to challenge his or her evidence and truthfulness. The questions asked of the witness must be relevant to the issues and may be "leading," that is, the question may suggest the answer.<br /> ;custody:In family law, this term traditionally refers party with whom the child lives and at whose home the child eats and sleeps for the majority of the time. The concept of "primary residence" is overtaking this meaning of custody, particularly in circumstances where the parties share joint custody and joint guardianship of the children.<br /> ==D==<br /> ;damages:An award of money payable by one party to the other, usually as compensation for loss or harm suffered as a result of the other party's actions or failures to act. In family law, damages may be awarded to remedy a tort claim or a breach of contract.<br /> ;debt:A sum of money or an obligation owed by one person to another. A "debtor" is the person responsible for paying a debt. a "creditor" is the person to whom the money is owed.<br /> ;decision:In law, a judge's conclusion after hearing the argument and considering the evidence presented at a trial or an application. a judgment. A judge's decision will include both his or her conclusions about the relief claimed as well as his or her findings of fact. A written decision is called the judge's Reasons for Judgment.<br /> ;declaration:A pronouncement of the court as to a fact or a state of affairs. This should not be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something.<br /> ;deem:To make an assumption that one thing follows from another. a presumption of a fact based on proof of other facts.<br /> ;de facto:A Latin phrase meaning "in fact."<br /> ;default:A failure to do something which is either optional or mandatory, such as a failure to reply to an application or a claim within the time limits set out in the rules of court.<br /> ;default Judgment:A judgment obtained by a claimant following the respondent's failure to reply to his or her claim within the proper time.<br /> ;defence:A reply, rebuttal or answer to a claim. A respondent's defence may attack the claimant's claim on the truth of the facts alleged by the claimant, the law applicable to the case, or both.<br /> ;denial:Defending a claim by denying the truth of a fact supporting the claim. a rejection of the truth of facts alleged.<br /> ;de novo:A Latin phrase meaning "anew;" renewed, from the beginning. An application or trial heard de novo is heard for a second time without considering the result of the first hearing.<br /> ;desertion:The continued absence of one spouse from cohabitation with the other. prolonged separation between spouses. This is an old ground of divorce which has been replaced in the modern ''Divorce Act'' with simple separation for a period of not less than one year.<br /> ;desk order divorce:A process in which a divorce, with or without corollary relief, is obtained following the failure of the respondent to file a Response to Family Claim. A desk order divorce does not require an oral hearing and is the cheapest way to obtain a divorce order.<br /> ;disability:In law, the inability to do certain things, like entering into a contract or bringing a law suit. Legal disabilities include insanity and being under the age of majority.<br /> ;discovery:Disclosure and production are a stage of the litigation process in which each party advises the other of the documents in his or her possession which bear on the issues in the action, and those documents are exchanged. Discovery means the formal examination of a party under oath, outside of court, about the matters at issue in an action.<br /> ;dismiss:In law, a judge's decision to end a claim or dismiss an action with or without trial. An application or appeal which is dismissed has been heard and rejected by the court.<br /> ;divorce:The legal termination of a valid marriage by an order of the court, ending the marital relationship and the conjugal obligations of each spouse toward the other.<br /> ;domicile:The place where one has one's permanent home, where one lives most of the time. sometimes the place where one intends to have a permanent home. A party's domicile may have an impact on the jurisdiction of the court to hear an action or deal with certain claims made in an action.<br /> ;dower:The entitlement of a wife to a portion on her husband's estate on his death. This common law entitlement has been extinguished and is replaced by certain provisions of the ''Estate Administration Act'' and the ''Wills Variation Act'', which grant both spouses certain rights on the death of the other.<br /> ;dowry:In some cultures, the property and/or chattels brought into the marriage by the wife, or, the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and claims for dowry will not normally be enforceable.<br /> ;draft:In law, a non-final version of a document. an order prepared following judgment to be submitted to the court for its approval. To prepare or "draw" a legal document.<br /> ;duress:Forcing someone to do something, usually by psychological or emotional pressure, which that person is not obligated to do.<br /> ;duty:A legal obligation to do or not do something, whether under the common law or pursuant to legislation.<br /> <br /> ==E==<br /> ;encumbrance:A debt secured against property, such that a default on repayment gives the creditor a right to possess or sell the encumbered property.<br /> ;enticement:In family law, intentionally causing a wife to leave her husband or intentionally interfering with a married couple's consortium, an old common law cause of action. The ''Family Relations Act'' expressly forbids legal actions based on enticement.<br /> ;error of law:A ground of appeal claiming that the trial judge did not apply the law correctly in reaching his or her decision.<br /> ;estate:The sum of the property owned by a person or in which he or she has an interest.<br /> ;evidence:Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence.<br /> ;examination-in-chief:The portion of a trial where a party asks questions of a witness they have presented to elicit evidence of certain facts. The questions asked of the witness cannot be "leading," that is, the answer cannot be suggested in the question.<br /> ;examination for discovery:The cross-examination of a party under oath about the matters at issue in the action conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, under certain circumstances, be used at trial.<br /> ;execute:In contract law, to complete or accomplish. to complete the legal formalities necessary to give a document validity. One executes a separation agreement, for example, by signing it in the presence of a witness.<br /> ;ex parte:A Latin phrase meaning "on behalf of one party," but used to describe applications being made without notice being given to the other party. Such applications are only heard in urgent situations, for example, if a spouse has threatened to flee with the children or hide assets.<br /> ;expert evidence:Opinion evidence given by an expert at trial. Opinion evidence is evidence about what someone thinks or believes rather than something known as a fact, and is generally not admissible at trial except from experts. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists.<br /> <br /> ==F==<br /> ;family law agreement:An agreement between two persons involved in a spousal or parental relationship which deals with their respective rights and obligations to one another and which the parties expect will be enforceable in court. These agreements include marriage agreements (prenuptial agreements), cohabitation agreements (living together agreements) and separation agreements.<br /> ;family assets:Assets owned by either or both married spouses and subject to division between them on the breakdown on their marriage. An asset owned solely by one spouse may be found to be a family asset where it is used for a family purpose. Family assets are presumed to be divided between the spouses on an equal basis under the Family Relations Act.<br /> ;Financial Statement:A court form (Form F8 in the Supreme Court and Form 4 in the Provincial Court) used to set out a party's income, expenses, assets and debts on the party's oath or affirmation.<br /> ;finding:A conclusion made by a judge, determining a point of law or a disputed fact.<br /> ;finding of fact:A judge's conclusion about the facts of a case, made after hearing all the evidence.<br /> ;forum:In law, a court or level of court, sometimes used in reference to the court's jurisdiction.<br /> ;free and clear title:Real property owned without encumbrances on the title and without any other debt or obligation attached to the property.<br /> ;frustration:In contract law, an inability to complete or fulfill a contract, whether intentional or unintentional. the intentional intereference with the rights of another under a contract or court order. A contract which cannot be completed or fulfilled is said to be "frustrated."<br /> <br /> ==G==<br /> ;gainful employment:Steady work for pay. In family law, a dependant spouse usually has a duty to find gainful employment and become self-sufficient following the breakdown of a relationship. Under certain circumstances, a failure to find gainful employment may justify the termination of spousal support.<br /> ;gift:A voluntary transfer of property from one person to another, without expectation of payment or reward. True gifts do not usually qualify as family assets, making them exempt from division between spouses.<br /> ;good faith:Acting in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase ''bona fide''.<br /> ;guardian:A person charged with the care of someone under a legal disability. In family law, a guardian has the right to instruct and receive information from the people involved with the care of his or her child, such as doctors and teachers, the obligation to make arrangements for the necessities of the child’s life, and the right and obligation to make important decisions about how that child grows up.<br /> ;guardianship:In family law, being charged with the legal care of a child's person and estate.<br /> <br /> ==H==<br /> ;hearing:In law, a proceeding before a judge to determine questions of law and/or questions of fact, whether the hearing of an application or the hearing of a trial.<br /> ;hearsay:Evidence of which a witness has no direct, personal knowledge. For example, saying that "Pierre told me that Mitsou trashed the car" or "Mitsou told me she trashed the car." Hearsay evidence is not admissible at trial as a witness can only properly give evidence of those facts of which he or she has direct knowledge. Hearsay evidence may be allowed on interim applications, as long as the source of the hearsay information is identified.<br /> ;heirs:In estate law, the people intended or expected to receive property or other benefit under a will. a person's direct lineal descendants.<br /> <br /> ==I==<br /> ;indemnify:To repair harm or loss suffered by another.<br /> ;infant:A person not yet of the age of majority. a minor. a child.<br /> ;inheritance:Real or personal property received as a result of the provisions of a will. Inheritances do not usually qualify as family assets subject to division between spouses.<br /> ;injunction:An order that someone not do or cease doing a thing. a restraining order. In family law, injunctions are often sought to stop someone from doing something with the children, disposing of assets or harassing someone else.<br /> ;in loco parentis:A Latin phrase meaning "in the place of a parent;" acting as a parent in the place of the child's natural parent or intending to stand in the place of that parent. A person found to be in loco parentis to a child may be responsible to pay child support for that child.<br /> ;in personam:A Latin phrase meaning "against the person;" a right against a person as opposed to a right involving a thing.<br /> ;in rem:A Latin phrase meaning "against the thing;" refers to a right against objects or property rather against a person.<br /> ;inspection of documents:The right of a party to an action to look at and copy documents held by the other party which relate to issues in the action. part of the discovery and production process.<br /> ;instructions:In law, the directions given by a client to his or her lawyer about the conduct of a case.<br /> ;interim application:An application made after the commencement of a legal action but before its conclusion, usually for temporary relief until the final resolution of the matter at trial or by settlement before trial. In family law, interim applications are useful to establish parenting arrangements and support obligations on a quick, although temporary, basis.<br /> ;interim order:Any order made prior to the final resolution of a legal action at trial or by settlement before trial. a temporary, rather than permanent or final order.<br /> ;interlocutory:Literally, "between speakings;" refers to interim applications brought or orders made after the commencement of a legal action but before its conclusion.<br /> ;interrogatories:Written questions presented by one party which must be answered by other party in the form of an affidavit. part of the discovery process.<br /> ;intestate:Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Estate Administration Act''.<br /> ;in the alternative:A phrase used to indicate secondary relief or a secondary ground of relief, usually presented as an option to the primary relief or primary ground of relief claimed. As in "I'd like your Mustang, but, in the alternative, I'll take your Pinto."<br /> ;in trust:A phrase describing property held by one person for the benefit of another person who is ultimately eneitled to the property. Money held in trust is held in a lawyer's bank account on the lawyer's promise not to use that money except as may be agreed.<br /> <br /> ==J==<br /> ;joint account:A bank account shared by more than one person normally with an equal entitlement to deposit or withdraw, with or without the consent of the other account holders.<br /> ;joint custody:A situation in which both parents together have custody of their children.<br /> ;joint guardianship:A situation in which both parents together have guardianship of their children. Should one parent die in such circumstances, the other parent becomes the sole guardian of the children.<br /> ;joint tenancy:A form of ownership where two or more people co-own a thing. Each joint tenant’s interest in the property is not distinct, that is, it cannot be separated out from the other tenants' interests. When one joint tenant dies, the other tenants continue to own the whole of the property between them.<br /> ;judge:A person appointed by either the federal or provincial government, with the authority to hear and decide legal actions in an impartial manner, independent from influence by the government, whose decisions are binding upon the parties to an action.<br /> ;final judgment:A decision which completely and finally determines some or all of the issues in a legal action, following which there is no other recourse open to a dissatisfied party except an appeal.<br /> ;jurisdiction:This word has a number of meanings such as 1) the authority of the court to hear an action and make orders, 2) the limits within which a court must operate, 3) the limits of the authority of a particular judicial official, 4) the authority of a government to make legislation as determined by the constitution, and 5) the geographic location of a court.<br /> ;justice of the peace:A court official appointed by the provincial government with a defined decision-making authority.<br /> <br /> ==L==<br /> ;Land Title and Survey Authority:The department of the provincial government responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may lie against a parcel of property.<br /> ;lawyer's fees:The fees a lawyer charges his or her client pursuant to their retainer agreement, for the lawyer's services. Most lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include disbursements, which are costs incurred by the lawyer for such things as couriers, filing documents in court and photocopying.<br /> ;leading questions:Question asked of a witness which suggest their answers, normally asked during cross-examination, such as "You've never worked a day in your life, have you?"<br /> ;lease:An agreement such that the owner of a piece of property (a car or an apartment, for example) gives up the right to occupy and use that property in exchange for something else like money. A "lessor" is the person who retains ownership of the property. a "lessee" is the person who gets the right of possession in exchange for payments to the lessor.<br /> ;legal description:With respect to real property, the full formal identification of a particular piece of property by its lot number, district lot number, plan number and land district, rather than by its street address.<br /> ;legislate:To create, amend and revoke written laws governing things, people and places. a right of the provincial and federal governments to pass and rescind laws derived from the Constitution.<br /> ;legislation:An act, a statute. A written law created by a government.<br /> ;litigant:A party to a legal action, such as a Claimant or Respondent in the Supreme Court, or an Applicant or Respondent in the Provincial Court.<br /> ;lay litigant:A party to a legal action who is not represented by a lawyer and acts on his or her own behalf. "Lay" in this context means amateur.<br /> <br /> ==M==<br /> ;maintenance:In family law, usually refers to payments made by one party to the other to defray that person's daily living expenses or for the living expenses of the a child. also known as support.<br /> ;marriage:A legal and emotional relationship between two people, solemnized by a religious functionary or marriage commissioner, giving rise to certain mutual rights, benefits and obligations.<br /> ;marriage-like relationship:A quality of a romantic relationship indicating the nature of their parties' committment to each other as lovers and partners. A legal requirement for a couple to be considered common-law spouses. A couple in marriage-like relationship live together, share chores together, describe themselves as a couple, and their friends and family think of them as a committed couple.<br /> ;master:A provincially-appointed judicial officer with the limited authority deal with certain issues and certain court processes, including interim applications.<br /> ;material:In law, relevant, important. A "material fact" is a fact relevant to a claim.<br /> ;material<sup>def2</sup>:The term for the collective set of all documents, such as court forms, written argument, case authorities, and any exhibits for evidence, submitted by a party in the course of an adjudicative proceeding. <br /> ;matrimonial home:In family law, the dwelling occupied by a family as their home.<br /> ;mediation:A dispute resolution process in which a third party with special training, a mediator, helps the parties to a dispute find a resolution to that dispute.<br /> ;memorandum of understanding:A document setting out the essential terms of an agreement reached between two or more people, often used as a guide to the negotiation of a final, more detailed and more complete agreement.<br /> ;minutes of settlement:A document setting out the essential terms of an agreement or settlement reached between two or more people, produced after negotiations and signed by the parties and their lawyers to record the agreements reached to date. Minutes of Settlement are normally used as the foundation of a future final order or agreement, and are often attached to that order or agreement as a schedule.<br /> ;misrepresentation:Acts or words tending to give a false impression as to the true state of affairs.<br /> ;mistake:In contract law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error, including entry into an otherwise binding contract.<br /> ;mortgage:The conditional transfer of ownership in a piece of property to someone else, while retaining possession of the property, to secure a loan. The party to whom the title is given, the mortgagee, usually a bank, is allowed to register the title of the property in his or her name if the person making the transfer, the mortgagor, fails to repay the loan.<br /> ;motion:In law, an application to the court for an order, usually brought after the commencement of an action but before its conclusion following trial or by settlement before trial.<br /> <br /> ==N==<br /> ;natural parent:The biological parent of a child, as distinguished from adoptive parents and stepparents.<br /> ;negotiate:In family law, the process by which a contract or agreement is formed, usually consisting of the mutual compromise of the parties' original positions, through discussion and bargaining, to the extent tolerable by each party.<br /> ;'''non compos mentis''':A Latin phrase meaning "not of sound mind." A person who is ''non compos mentis'' is under a legal disability.<br /> ;notary public:A person authorized to take oaths and affirmations, and execute or certify certain documents. All lawyers are notaries public in addition to being barristers and solicitors.<br /> ;Notice of Appeal:A legal document required by the rules of court which notifies a party of the other party's intent to appeal a decision.<br /> ;Notice of Family Claim (Form F3):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person bringing a family law case, the court the claim will be heard in and the person's Address for Service.<br /> ;Notice of Application (Form F31):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person making an application, the grounds on which that relief is claimed and the date on which the application will be heard.<br /> ;null and void:Invalid. A nullity. Of no legal force and effect. Curiously, null and void mean the same thing.<br /> <br /> ==O==<br /> ;oath:An affirmation of the truth of a statement by one's faith in a god. Someone making an affidavit may give his or her evidence in that affidavit under oath. a witness giving oral evidence may give his or her evidence in court under oath.<br /> ;obligation:A duty at law, whether contractual, moral or legal in origin, to do or not do something.<br /> ;offer:In contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement proposal.<br /> ;offer to settle:A document setting out a formal offer made by one party to the other prior to the trial of an action describing the terms on which the party is prepared to settle the action without trial. Offers to settle can have important consequences, particularly with respect to the award of costs if the offer is close to what the judge decides following trial.<br /> ;officer of the court:Any official of the court, including lawyers, court clerks and judges.<br /> ;omission:A failure to do something, whether intentional or unintentional.<br /> ;order:A mandatory direction of the court, binding upon the parties to a legal action. An "interim order" is a temporary order obtained by an inteirm application. A "final order" is a permanent order and the product of either the trial of the action or the settlement of the parties before trial, following which the only recourse open to a dissatisfied party is to appeal the decision. Orders made with the agreement of the parties are called "consent orders."<br /> ;Ownership:A usually exclusive right to possess and use a thing.<br /> <br /> ==P==<br /> ;the doctrine of paramountcy:The rule that federal legislation on a subject is superior to and takes precedence over any provincial legislation on the same subject.<br /> ;'''parens patriae''':A Latin phrase meaning "parent of the country," the court's inherent jurisdiction to deal with issues concerning persons under legal disabilities.<br /> ;parent:In family law, the natural or adoptive father or mother of a child. may also include stepparents, depending on the circumstances and the applicable legislation.<br /> ;party:In law, a person making or defending an action. someone either asserting a claim in a legal action or subject to a claim made in an action.<br /> ;paternity test:A scientific test performed to determine the parentage of a child, usually performed by DNA testing of the blood or saliva of the alleged parent(s) and the child.<br /> ;peace officer:A person having a duty to enforce the law as a result of his or her employment, including police officers as well as sheriffs, customs officers, and mayors.<br /> ;pecuniary:Relating to money.<br /> ;perjury:Intentionally lying to the court while giving evidence under oath or affirmation. also applies to lying in a sworn document, such as an affidavit. This is an offence.<br /> ;personal property:Chattels, goods. property other than real property.<br /> ;Petition (Form F73):A court document used to commence specific kinds of legal action. The person bringing the action is the Petitioner and the person against whom the action is brought is the petition respondent. An action can only be started by a Petition in certain circumstances. most often actions are started with a Notice of Family Claim.<br /> ;pleadings:A legal document setting out either a claim or a defence to a claim. Usually, the pleadings consist of the Notice of Family Claim, Response to Family Claim and Counterclaim.<br /> ;possession:In law, the right to have the control and use of a thing, but not necessarily the right to own that thing.<br /> ;precedent:This word has a number of meanings, including 1) the historic decisions of the courts, 2) the principle that those decisions are binding on subsequent judges hearing cases of a similar nature or in similar circumstances, and 3) templates or sample documents used to draft a new document.<br /> ;premises:In real property law, a piece of property and a building situated on it, usually, the area of the property surrounding a building on that property. Also, the foundation of a logical argument.<br /> ;'''prima facie''':A Latin phrase meaning "first face," refers to a fact which ought to be obvious.<br /> ;privilege:In law, the duty a lawyer has to keep his or her client's information confidential, including communications between the lawyer and client and advice given to the client. A lawyer cannot reveal privileged communications even to the court, except in certain usual circumstances.<br /> ;proceeding:In law, the whole of the conduct of a legal action, from beginning to end, and all steps in between. may also be used to refer to a specific hearing or trial.<br /> ;proof:Evidence which establishes or tends to establish the truth of a fact. also, the conclusion of a logical argument.<br /> ;'''quantum meruit''':A Latin phrase meaning "the amount of deserved." Refers to payment for a service according to the value of the service rendered.<br /> <br /> ==Q==<br /> ;quash:To set aside or vacate an order or judgment.<br /> ;question of fact:An issue arising where the parties disagree about a material fact relevent to a legal action, when only one party can be right. A court's decision about what the facts of a case are is a "finding of fact."<br /> ;question of law:An issue about which law should be applied in a legal action, or how the law should be applied in the circumstances of a particular action. A court's decision about how the law should be applied to the facts of case or about what the law is in a particular situation is a "finding of law."<br /> <br /> ==R==<br /> ;real property:A piece of land and the buildings on that land. Real property is different from chattels or other personal property because it cannot be moved.<br /> ;rebut:In law, to reply to an argument, a statement of fact or a legal presumption by presenting argument or evidence to the contrary. providing evidence which tends to disturb a presumption.<br /> ;registrar:An officer of the court with the power to make certain decisions, including the terms of a judge's order. also, an officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings.<br /> ;court registry:A central office, located in each judicial district, at which the court files for each legal action brought in that district are maintained, and at which legal documents can be filed, searched and reviewed.<br /> ;regulations:A kind of lesser legislation giving supplemental rules to a particular act. Regulations are created and amended by the government, not the Legislature or Parliament.<br /> ;relief:In law, an order sought by one party to a legal action as set out in his or her pleadings. Where more than one remedy or order is sought, each remedy sought is called a "head of relief."<br /> ;reply:In law, an answer or rebuttal to a claim made or a defence raised by the other party to an action.<br /> ;requisition:A court form (Forms F17, F29 & F35) prescribed by the Supreme Court Family Rules with which a party asks the court registry staff to perform a task (like searching a file) or asks the registrar to make a procedural order (like an order that a party be served substitutionally).<br /> ;residence:The place a person permanently lives. This is different from a person's "domicile" in that a person's residence is more concrete and less changeable in nature. A person's residence can have an impact on the court's authority to hear and decide a legal action.<br /> ;respondent:The person against whom a claim has been brought. Formerly known as the defendant.<br /> ;Response to Family Claim (Form F4):A legal document required by the Supreme Court Family Rules setting out Respondent's position on each of the orders sought by the Claimant in the Notice of Family Claim as well as the Respondent's Address for Service.<br /> ;restraining order:An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of assets, and stopping someone from harassing someone else.<br /> ;resulting trust:In family law, a finding by a court that one party holds property in trust for another as a result of the parties' intention to make a trust. A trust relationship inferred by operation of law.<br /> ;retainer:This word means several things such as 1) the act of hiring of lawyer, 2) the money paid to a lawyer to hire his or her services, and 3) the terms and extent of a lawyer's work on behalf of a client.<br /> ;review:In law, the re-examination of a state of affairs, an order or an agreement, usually to determine whether the terms of an agreement or order are still appropriate. A separation agreement or an order may state that a particular term is "reviewable" at a certain date. On that date the circumstances of each party are re-examined to determine whether the term remains appropriate, and whether the term should be cancelled, changed or let alone.<br /> ;rules of court:A set of codified guidelines governing the court process and litigation generally, and providing the official court forms required. The rules of court are particular to each level of court.<br /> <br /> ==S==<br /> ;sale:An agreement to transfer the ownership of property from one person to another in return for something else, like money or another property.<br /> ;separation agreement:A contract between spouses, partners or parents, intended to resolve all or some of the issues outstanding between them as a result of the breakdown of their relationship, and intended to guide the parties in their dealings with one another thereafter.<br /> ;personal service:The personal delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by physically handing the document to the party and verifying the recipient's identity.<br /> ;ordinary service:The delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by transmitting the document to one of the party's Addresses for Service.<br /> ;Affidavit of Service (Form F15):An affidavit in a form prescribed by the Supreme Court Family Rules sworn by the person who has personally served someone with legal documents, stating that the party was served and describing the circumstances in which service was accomplished.<br /> ;substituted service:Service in a way other than service as prescribed by the rules of court, in the manner and on the conditions imposed by an order of the court.<br /> ;settlement:A resolution of a legal action or of one or more matters at issue in that action, made by the agreement of the parties to that action, as opposed to resolution of the matter by the court following a trial or hearing.<br /> ;spouse:According to the ''Divorce Act'', a spouse is a person who is legally married to someone else, whether of the same or a different gender. Under the ''Family Relations Act'', this term also includes unmarried couples who have lived together in a marriage-like relationship for a period of at least two years.<br /> ;spousal support:Money paid by one spouse to the other to help cover the recipient's living expenses. Also called alimony and maintenance.<br /> ;'''stare decisis''':A Latin phrase meaning "standing by the thing decided," refers to the common law principle that courts are obliged to follow the decisions of the courts before them on the same subjects.<br /> ;'''status quo''':A Latin phrase meaning "the state that was," refers to whatever circumstances or conditions previously existed and, usually, had existed for some time.<br /> ;subpoena:A legal document issued either by the court or by a party which compels a witness to attend court to give evidence, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court.<br /> ;suit:A law suit, an action, a court proceeding, a case. A claimant's claim against a respondent.<br /> <br /> ==T==<br /> ;taxation:A hearing in which a client challenges a lawyer's bill and a lawyer proves his or her bill. A taxation hearing is held before a master or a registrar who examines the account to determine whether the account is fair. The master or registrar assesses the bill and issues a Certificate of Fees stating what amount is properly payable by the client or refundable by the lawyer.<br /> ;tenancy in common:A kind of ownership of a property by two or more persons such that each owner has a distinct and severable share in the property. A tenant in common may chose to sell his or her share in that property independently from other owners.<br /> ;testator:In estate law, a person who has made a will used in reference to that will. The delightful feminine form of this word is "testatrix."<br /> ;testimony:A statement made by a witness to a court as evidence, or made in an affidavit, made under oath or affirmation as to the truth of the statement.<br /> ;third party:A person named in an action or joined to an action who is neither the Claimant nor the Respondent. A third party may be joined to an action where the Respondent believes that the person has some responsibility for the cause of action.<br /> ;title:In law, having legal ownership of a thing. a document evincing legal ownership of a thing.<br /> ;trial:The testing of the respective claims and defences of the parties to an action through the presentation of evidence and legal argument at a formal hearing before a judge with the jurisdiction to hear the matter and to make a final, binding determination of the claims.<br /> ;trust:In law, a form of possession in which one person holds, deals with and is responsible for property for the benefit of another. A "trustee" is the person who holds the property in trust for the other person. the "beneficiary" is the person for whom the property is held.<br /> ;trustee:One who holds property in trust for the benefit of another.<br /> <br /> ==U==<br /> ;unjust enrichment:Money or benefits unfairly gained by one person at a corresponding expense or loss to another.<br /> ;unlawful:Acts or omissions made contrary to legislation or the common law.<br /> <br /> ==V==<br /> ;vacate:The setting aside or quashing of a decision or order, sometimes effective on the date of the vacation, sometimes with a retroactive effect as if the original order had never been made.<br /> ;validity of marriage:For a marriage to be valid, the spouses must be: not within the prohibited degrees of consanguinity, over the commmon law age of puberty, unmarried at the time of the marriage, and capable of understanding the meaning of marriage.<br /> <br /> ==W==<br /> ;waive:In law, to give up a right or entitlement. to give up the opportunity to assert a right or enforce an entitlement.<br /> ;waste:In law, intentionally or unintentionally allowing the value of a piece of property to diminish through carelessness, neglect or purposeful harm.<br /> ;will <sup>def</sup>:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;Will:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;witness:A person giving evidence on the person's oath or affirmation as to the truth of the statements made.</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Terminology&diff=535 Terminology 2012-12-24T19:48:23Z

<p>209.17.147.129: /* M */</p> <hr /> <div><div class="noautonum">__TOC__</div><br /> ==A==<br /> ;ab initio:A Latin phrase meaning "from the beginning." A marriage which is unlawful is void ''ab initio'', as if it never happened.<br /> ;abduction:The taking of a person by force or fraud. In family law, the taking of a child contrary to a court order or without the other parent's permission. In certain circumstances, this may also be a criminal offence.<br /> ;abrogate:To revoke or annul. One "abrogates" a contract, like a family agreement, by doing something expressly contrary to the agreement. One party's act of abrogation may not void the agreement, but will give the other party a cause of action.<br /> ;access:A parent's time with their children following the breakdown of the parent's relationship. Access usually refers to the visits of a child with the parent who doesn't have the child's primary residence.<br /> ;account:In law, a lawyer's bill to his or her client. Also, a statement of one person's view of events.<br /> ;Act:A law passed by a government, also called "legislation" or a "statute." Also, the intentional doing of a thing.<br /> ;action:A law suit. or a legal proceeding in which one party sues another for a remedy or specific relief. In family law, an action for divorce is a court proceeding in which the claimant sues the respondent for the relief of an order for the parties' divorce.<br /> ;address for service:The address at which a party must accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addreses for service may include postal addresses, fax numbers and email addresses.<br /> ;adoption:In family law, the act or process of one person taking another person's natural child as his or her own. The child then becomes the adopting parent's legal child as if the child were the adopting parent's natural child, and the child's biological parent loses all rights and obligations with respect to the child.<br /> ;''Adoption Act'':A provincial law dealing with entitlement to adopt and the adoption process.<br /> ;adoptive parent:A person who has formally assumed the status of parent to a child who is not his or her biological offspring. <br /> ;adultery:The act of a married person voluntarily engaging in sexual intercourse with a person other than his or her spouse; cheating; playing around; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act.<br /> ;advance:In family law, this usually refers to one party obtaining a share of his or her portion of the family assets before those assets have been divided, whether following trial or a final settlement of the matter.<br /> ;advocate:A lawyer; sometimes a person other than a lawyer who presents and argues a case in court on behalf of a party to the proceeding. Also, to argue a debated position.<br /> ;affidavit:A legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally under oath. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit about the truth of its contents. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements orally before a judge at trial.<br /> ;affirm:To promise that a statement is true. When someone "swears" to tell the truth, they are considered to be taking an oath on their faith in a god. Affirming is a substitute for swearing something before a god, most often employed where person making the statement is an atheist or under a religious proscription from making oaths.<br /> ;age of majority:The age at which someone becomes a legal adult with the full capacity to act on their own, independent of their parents, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority.<br /> ;agent:In law, someone acting on behalf of someone else, with that person's express permission and normally their express direction.<br /> ;alias:A name by which people know you other than your legal name.<br /> ;alienation:In family law, the actions or statements of a parent which tend to sever, damage or harm the child's relationship with or affections for the other parent.<br /> ;allegation:An assertion that a certain set of facts is true, such as "on Monday, I had soup for lunch" or "Bob drives a blue Camaro." Also called an allegation of fact or a statement of fact.<br /> ;alternative dispute resolution:A phrase referring to processes for the resolution of disputes outside the court system, including mediation, negotiation and collaborative law. In family law, the purpose of ADR is to offer a less conflict-oriented and less expensive way to resolve a dispute than litigation.<br /> ;amend:To change or alter a pleading or document which has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "Amended Notice of Family Claim" or the "Amended Counterclaim."<br /> ;amicus curiae:A Latin phrase meaning "friend of the court." Usually refers to a lawyer who does not act for any of the parties and assists or brings relevant information to the attention of the presiding judge.<br /> ;annulment:A declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occured. <br /> ;answer:A response to a claim or an allegation of fact. Usually refers to legal documents used to reply to the allegations or claims of another party, such as a Response to Family Claim, an Application Response or a Reply.<br /> ;appeal:An application to a court for a review of the decision of a lower court and, hopefully, the reversal of that decision. A decision of a judge of the Supreme Court of British Columbia is, for example, appealed to the Court of Appeal for British Columbia.<br /> ;applicant:The party to an action who brings an application to court in the course of that action, usually an application for an interim order.<br /> ;application:A request to the court that it make an order for specific relief, usually on an interim or temporary basis.<br /> ;application respondent:The party to an action against whom an application has been brought in the course of that action. the party replying to the applicant's application, usually an application for an interim order.<br /> ;Application Response (Form F32):A legal document required by the Supreme Court Family Rules setting out the application respondent's position on the relief claimed in an application and the grounds on which that relief is opposed.<br /> ;arbitrator:A person selected by the parties to a dispute to resolve their dispute outside the court process and to whom the parties give the authority to impose a settlement.<br /> ;arbitration:A dispute resolution process subject to the principles of natural justice in which the parties pick the person who will resolve their dispute and agree to be bound by the arbitrator's decision.<br /> ;argument:In law, persuasion by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence about the facts of a case, or to a written brief of argument.<br /> ;arrears:Money owing for child support or spousal support as a result of an agreement or a court order which has not been paid.<br /> ;assess:To determine the value or amount of something. A lawyer's bill may be assessed by a registrar to determine the proper amount the client should pay. a piece of property may be "assessed" to determine its likely sale price.<br /> ;assign:To transfer an interest or right in something, such as property or a cause of action, to someone else.<br /> <br /> ==B==<br /> ;bad faith:Intentionally misleading someone else, whether by doing or not doing something. acting in a manner contrary to one's actual intention. an intentional failure to act honestly and openly. Also called ''male fides''.<br /> ;barrister & solicitor:A lawyer. a person licenced to practice law in a particular jursidiction. In England barristers do trial work and solicitors draft legal documents. In Canada, lawyers are both barristers and solicitors.<br /> ;beneficiary:The person for whose benefit a trustee holds property. the recipient or intended recipient of property passed in a will.<br /> ;bill:A lawyer's statement of account. Also, draft legislation presented by government to the Legislature or Parliament for approval.<br /> ;binding:A requirement or obligation to honour and abide by a contract or order of the court. for example, a judge's order is binding in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be followed by a lower court.<br /> ;bona fide:A Latin phrase meaning "in good faith;" doing something honestly and openly, without the intention of misleading or causing harm to someone else.<br /> ;breach of contract:Acting or failing to act in a manner contrary to the terms of the agreement. In family law, a breach of a term of a family agreement may give rise to a cause of action for the other party, but the breach is unlikely to allow the other party to treat the agreement as if it were cancelled or void.<br /> ;brief:A written argument. a memorandum of law. A brief is usually presented to a judge as a summary of an argument or a summary of the law on a particular issue.<br /> ;business assets:In family law, property owned by a spouse's company or corporation and not used for family purposes. Business assets are not usually subject to division between spouses, unlike family assets.<br /> ==C==<br /> ;Charter of Rights and Freedoms:A part of the ''Constitution Act, 1981'' which sets out the fundamental rights and freedoms shared by all Canadians, including the freedoms of religion and expression and the rights to life and liberty. Neither the federal nor the provincial governments can pass laws or act in ways contrary to the ''Charter''. Certain sections of the ''Charter'', particularly the portions dealing with equality rights, have a special importance for family law. For example, the way that the provincial ''Family Relations Act'' treats unmarried and married couples differently for the purposes of dividing their assets may be contrary to equality guarantees set out in the ''Charter''.<br /> ;case:A law suit. an action. a cause of action. an instance of litigation. Also refers to a historic decision of the court.<br /> ;certificate of pending litigation (CPL):A document filed in the Land Title and Survey Authority against the title of a piece of real property stating that the property is the subject of litigation and that ownership of the property may change as a result. In family law, a CPL is used to protect the interest of a spouse in a piece of property by prenting the property from being sold or remortgaged.<br /> ;chattel:An item of personal property. Distinguished from real property in the sense that chattels can be picked up and taken from place to place, but real property cannot.<br /> ;child support:Money paid by one parent to the other to help defray a child's living expenses. Also known as maintenance and palimony.<br /> ;Child Support Guidelines:A federal regulation which sets out the amount of child support a party must pay based on the party's income and the number of children involved and provides rules about the calculation of child support. The tables that set out the amount of support payable differ from province to province.<br /> ;claim:The assertion of a legal right to something, whether to an order or to a thing. the relief sought by one party against the other.<br /> ;claimant:The person who starts a legal action seeking orders against another party, the respondent. Formerly known as the plaintiff.<br /> ;clear title:Ownership of property free of any debt registered against the property. For example, owning a piece of land without a mortgage, or owning a car without a car loan.<br /> ;coercion:The use of force or intimidation to compel someone to do something. interference with another person's freedom of choice. For example, saying "sign this separation agreement or you'll never see your children again."<br /> ;cohabitation:Living with another person in a "marriage-like relationship" while legally unmarried. shacking up. living in sin. playing house.<br /> ;collusion:An agreement to do something with another person towards an illegal goal.<br /> ;common law:This phrase has a number of different meanings such as 1) a legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, 2) the system of justice used in non-criminal cases in all provinces except Quebec, and 3) the legal status of an unmarried couple who qualify as "spouses" under any particular law, such as the ''Family Relations Act''.<br /> ;competent:In law, having the capacity or ability or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of his or her evidence. A court which has competent jurisdiction has the authority to deal with the issues in a case and has authority over the parties to that case.<br /> ;conclusion of fact:A judge's decisions as to what the facts of a case are, based on the evidence he or she has heard and his or her evaluation of the credibility of the witnesses giving that evidence.<br /> ;conclusion of law:A judge's decision about what law applies in a particular case and his or her conclusion about how that law should be applied.<br /> ;concur:To agree.<br /> ;concurrent:Happening or existing at the same time. Two courts of "concurrent jurisdiction," for example, each have the jurisdiction to hear the same case and deal with the same issues.<br /> ;condonation:Forgiving a wrongful act. In family law, usually refers to the forgiving of an act of adultery or cruelty and the continuation of the parties' relationship as it was before.<br /> ;conjugal rights:A quaint and somewhat outdated idea describing a spouse's right to enjoy the benefits of married life, including the comforts of living with his or her spouse, sharing meals, emotional comfort and sympathy, mutual confidence and privacy, sex and so forth.<br /> ;connivance:Causing or permitting a wrongful act. In family law, usually refers to conspiring toward adultery as a ground of divorce to trick the court into making a divorce order.<br /> ;consanguinity:Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity set out in the ''Marriage (Prohibited Degrees) Act''.<br /> ;consent:Agreement. making a choice of one's own free will after giving the matter thought.<br /> ;consent order:A court order that all parties to an action agree the court should make. Consent orders may be interim or final.<br /> ;consortium:The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other.<br /> ;conspiracy:The agreement and intention of two or more people to do an unlawful act, or to do a lawful act by unlawful means. A "conspirator" is a party to a conspiracy.<br /> ;constitution:The rules which set out the political and legal organization of a state. The power and authority of the government, the legislature and the court stem from the constitution. In Canada, there are two primary constitutional documents, the ''Constitution Act, 1867'' and the ''Constitution Act, 1982''. The ''Charter of Rights and Freedoms'' is part of the ''Constitution Act, 1982''.<br /> ;construction:In law, the interpretation of something, like a document or a set of circumstances, so as to give it meaning. For example, if a separation agreement stated that one parent "will have the children on Monday, Tuesday and Friday" but didn't say anything about the other parent, the agreement would likely be constructed to mean that the other parent would have the children on the days not mentioned.<br /> ;constructive trust:In family law, a trust relationship imposed to remedy the unjust enrichment of one party.<br /> ;contempt of court:Doing something or failing to do something which impairs the administration of justice or respect for the court’s authority. For example bribing a witness, disobeying a court order or misleading the court. Contempt of court is a civil offence as well as a criminal offence.<br /> ;contract:An agreement by two or more people which gives them enforceable obligations towards each other, usually in writing. A valid contract must be offered by one person and accepted by the other, and some form of payment or other thing of value must change hands.<br /> ;contract law:The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are not always applicable to family law agreements.<br /> ;corollary relief:In an action for an order for divorce this term refers to all relief apart from the divorce order. For example, one might sue for a divorce as well as custody of the children. the part of the action relating to custody is the corollary relief.<br /> ;costs:A party's legal expenses stemming from a legal action, calculated under the rules of court. A party's costs are not the same as his or her lawyer's account. The party to an action who is more successful than the other is usually awarded his or her costs of the action.<br /> ;Counterclaim (Form F5):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a Respondent against a Claimant.<br /> ;Court of Appeal:The highest level of court in British Columbia, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and all provincial tribunals.<br /> ;covenant:A promise to do or not do a particular thing.<br /> ;cross-examination:The portion of a trial where a party asks questions of a witness presented by the other party to challenge his or her evidence and truthfulness. The questions asked of the witness must be relevant to the issues and may be "leading," that is, the question may suggest the answer.<br /> ;custody:In family law, this term traditionally refers party with whom the child lives and at whose home the child eats and sleeps for the majority of the time. The concept of "primary residence" is overtaking this meaning of custody, particularly in circumstances where the parties share joint custody and joint guardianship of the children.<br /> ==D==<br /> ;damages:An award of money payable by one party to the other, usually as compensation for loss or harm suffered as a result of the other party's actions or failures to act. In family law, damages may be awarded to remedy a tort claim or a breach of contract.<br /> ;debt:A sum of money or an obligation owed by one person to another. A "debtor" is the person responsible for paying a debt. a "creditor" is the person to whom the money is owed.<br /> ;decision:In law, a judge's conclusion after hearing the argument and considering the evidence presented at a trial or an application. a judgment. A judge's decision will include both his or her conclusions about the relief claimed as well as his or her findings of fact. A written decision is called the judge's Reasons for Judgment.<br /> ;declaration:A pronouncement of the court as to a fact or a state of affairs. This should not be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something.<br /> ;deem:To make an assumption that one thing follows from another. a presumption of a fact based on proof of other facts.<br /> ;de facto:A Latin phrase meaning "in fact."<br /> ;default:A failure to do something which is either optional or mandatory, such as a failure to reply to an application or a claim within the time limits set out in the rules of court.<br /> ;default Judgment:A judgment obtained by a claimant following the respondent's failure to reply to his or her claim within the proper time.<br /> ;defence:A reply, rebuttal or answer to a claim. A respondent's defence may attack the claimant's claim on the truth of the facts alleged by the claimant, the law applicable to the case, or both.<br /> ;denial:Defending a claim by denying the truth of a fact supporting the claim. a rejection of the truth of facts alleged.<br /> ;de novo:A Latin phrase meaning "anew;" renewed, from the beginning. An application or trial heard de novo is heard for a second time without considering the result of the first hearing.<br /> ;desertion:The continued absence of one spouse from cohabitation with the other. prolonged separation between spouses. This is an old ground of divorce which has been replaced in the modern ''Divorce Act'' with simple separation for a period of not less than one year.<br /> ;desk order divorce:A process in which a divorce, with or without corollary relief, is obtained following the failure of the respondent to file a Response to Family Claim. A desk order divorce does not require an oral hearing and is the cheapest way to obtain a divorce order.<br /> ;disability:In law, the inability to do certain things, like entering into a contract or bringing a law suit. Legal disabilities include insanity and being under the age of majority.<br /> ;discovery:Disclosure and production are a stage of the litigation process in which each party advises the other of the documents in his or her possession which bear on the issues in the action, and those documents are exchanged. Discovery means the formal examination of a party under oath, outside of court, about the matters at issue in an action.<br /> ;dismiss:In law, a judge's decision to end a claim or dismiss an action with or without trial. An application or appeal which is dismissed has been heard and rejected by the court.<br /> ;divorce:The legal termination of a valid marriage by an order of the court, ending the marital relationship and the conjugal obligations of each spouse toward the other.<br /> ;domicile:The place where one has one's permanent home, where one lives most of the time. sometimes the place where one intends to have a permanent home. A party's domicile may have an impact on the jurisdiction of the court to hear an action or deal with certain claims made in an action.<br /> ;dower:The entitlement of a wife to a portion on her husband's estate on his death. This common law entitlement has been extinguished and is replaced by certain provisions of the ''Estate Administration Act'' and the ''Wills Variation Act'', which grant both spouses certain rights on the death of the other.<br /> ;dowry:In some cultures, the property and/or chattels brought into the marriage by the wife, or, the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and claims for dowry will not normally be enforceable.<br /> ;draft:In law, a non-final version of a document. an order prepared following judgment to be submitted to the court for its approval. To prepare or "draw" a legal document.<br /> ;duress:Forcing someone to do something, usually by psychological or emotional pressure, which that person is not obligated to do.<br /> ;duty:A legal obligation to do or not do something, whether under the common law or pursuant to legislation.<br /> <br /> ==E==<br /> ;encumbrance:A debt secured against property, such that a default on repayment gives the creditor a right to possess or sell the encumbered property.<br /> ;enticement:In family law, intentionally causing a wife to leave her husband or intentionally interfering with a married couple's consortium, an old common law cause of action. The ''Family Relations Act'' expressly forbids legal actions based on enticement.<br /> ;error of law:A ground of appeal claiming that the trial judge did not apply the law correctly in reaching his or her decision.<br /> ;estate:The sum of the property owned by a person or in which he or she has an interest.<br /> ;evidence:Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence.<br /> ;examination-in-chief:The portion of a trial where a party asks questions of a witness they have presented to elicit evidence of certain facts. The questions asked of the witness cannot be "leading," that is, the answer cannot be suggested in the question.<br /> ;examination for discovery:The cross-examination of a party under oath about the matters at issue in the action conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, under certain circumstances, be used at trial.<br /> ;execute:In contract law, to complete or accomplish. to complete the legal formalities necessary to give a document validity. One executes a separation agreement, for example, by signing it in the presence of a witness.<br /> ;ex parte:A Latin phrase meaning "on behalf of one party," but used to describe applications being made without notice being given to the other party. Such applications are only heard in urgent situations, for example, if a spouse has threatened to flee with the children or hide assets.<br /> ;expert evidence:Opinion evidence given by an expert at trial. Opinion evidence is evidence about what someone thinks or believes rather than something known as a fact, and is generally not admissible at trial except from experts. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists.<br /> <br /> ==F==<br /> ;family law agreement:An agreement between two persons involved in a spousal or parental relationship which deals with their respective rights and obligations to one another and which the parties expect will be enforceable in court. These agreements include marriage agreements (prenuptial agreements), cohabitation agreements (living together agreements) and separation agreements.<br /> ;family assets:Assets owned by either or both married spouses and subject to division between them on the breakdown on their marriage. An asset owned solely by one spouse may be found to be a family asset where it is used for a family purpose. Family assets are presumed to be divided between the spouses on an equal basis under the Family Relations Act.<br /> ;Financial Statement:A court form (Form F8 in the Supreme Court and Form 4 in the Provincial Court) used to set out a party's income, expenses, assets and debts on the party's oath or affirmation.<br /> ;finding:A conclusion made by a judge, determining a point of law or a disputed fact.<br /> ;finding of fact:A judge's conclusion about the facts of a case, made after hearing all the evidence.<br /> ;forum:In law, a court or level of court, sometimes used in reference to the court's jurisdiction.<br /> ;free and clear title:Real property owned without encumbrances on the title and without any other debt or obligation attached to the property.<br /> ;frustration:In contract law, an inability to complete or fulfill a contract, whether intentional or unintentional. the intentional intereference with the rights of another under a contract or court order. A contract which cannot be completed or fulfilled is said to be "frustrated."<br /> <br /> ==G==<br /> ;gainful employment:Steady work for pay. In family law, a dependant spouse usually has a duty to find gainful employment and become self-sufficient following the breakdown of a relationship. Under certain circumstances, a failure to find gainful employment may justify the termination of spousal support.<br /> ;gift:A voluntary transfer of property from one person to another, without expectation of payment or reward. True gifts do not usually qualify as family assets, making them exempt from division between spouses.<br /> ;good faith:Acting in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase ''bona fide''.<br /> ;guardian:A person charged with the care of someone under a legal disability. In family law, a guardian has the right to instruct and receive information from the people involved with the care of his or her child, such as doctors and teachers, the obligation to make arrangements for the necessities of the child’s life, and the right and obligation to make important decisions about how that child grows up.<br /> ;guardianship:In family law, being charged with the legal care of a child's person and estate.<br /> <br /> ==H==<br /> ;hearing:In law, a proceeding before a judge to determine questions of law and/or questions of fact, whether the hearing of an application or the hearing of a trial.<br /> ;hearsay:Evidence of which a witness has no direct, personal knowledge. For example, saying that "Pierre told me that Mitsou trashed the car" or "Mitsou told me she trashed the car." Hearsay evidence is not admissible at trial as a witness can only properly give evidence of those facts of which he or she has direct knowledge. Hearsay evidence may be allowed on interim applications, as long as the source of the hearsay information is identified.<br /> ;heirs:In estate law, the people intended or expected to receive property or other benefit under a will. a person's direct lineal descendants.<br /> <br /> ==I==<br /> ;indemnify:To repair harm or loss suffered by another.<br /> ;infant:A person not yet of the age of majority. a minor. a child.<br /> ;inheritance:Real or personal property received as a result of the provisions of a will. Inheritances do not usually qualify as family assets subject to division between spouses.<br /> ;injunction:An order that someone not do or cease doing a thing. a restraining order. In family law, injunctions are often sought to stop someone from doing something with the children, disposing of assets or harassing someone else.<br /> ;in loco parentis:A Latin phrase meaning "in the place of a parent;" acting as a parent in the place of the child's natural parent or intending to stand in the place of that parent. A person found to be in loco parentis to a child may be responsible to pay child support for that child.<br /> ;in personam:A Latin phrase meaning "against the person;" a right against a person as opposed to a right involving a thing.<br /> ;in rem:A Latin phrase meaning "against the thing;" refers to a right against objects or property rather against a person.<br /> ;inspection of documents:The right of a party to an action to look at and copy documents held by the other party which relate to issues in the action. part of the discovery and production process.<br /> ;instructions:In law, the directions given by a client to his or her lawyer about the conduct of a case.<br /> ;interim application:An application made after the commencement of a legal action but before its conclusion, usually for temporary relief until the final resolution of the matter at trial or by settlement before trial. In family law, interim applications are useful to establish parenting arrangements and support obligations on a quick, although temporary, basis.<br /> ;interim order:Any order made prior to the final resolution of a legal action at trial or by settlement before trial. a temporary, rather than permanent or final order.<br /> ;interlocutory:Literally, "between speakings;" refers to interim applications brought or orders made after the commencement of a legal action but before its conclusion.<br /> ;interrogatories:Written questions presented by one party which must be answered by other party in the form of an affidavit. part of the discovery process.<br /> ;intestate:Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Estate Administration Act''.<br /> ;in the alternative:A phrase used to indicate secondary relief or a secondary ground of relief, usually presented as an option to the primary relief or primary ground of relief claimed. As in "I'd like your Mustang, but, in the alternative, I'll take your Pinto."<br /> ;in trust:A phrase describing property held by one person for the benefit of another person who is ultimately eneitled to the property. Money held in trust is held in a lawyer's bank account on the lawyer's promise not to use that money except as may be agreed.<br /> <br /> ==J==<br /> ;joint account:A bank account shared by more than one person normally with an equal entitlement to deposit or withdraw, with or without the consent of the other account holders.<br /> ;joint custody:A situation in which both parents together have custody of their children.<br /> ;joint guardianship:A situation in which both parents together have guardianship of their children. Should one parent die in such circumstances, the other parent becomes the sole guardian of the children.<br /> ;joint tenancy:A form of ownership where two or more people co-own a thing. Each joint tenant’s interest in the property is not distinct, that is, it cannot be separated out from the other tenants' interests. When one joint tenant dies, the other tenants continue to own the whole of the property between them.<br /> ;judge:A person appointed by either the federal or provincial government, with the authority to hear and decide legal actions in an impartial manner, independent from influence by the government, whose decisions are binding upon the parties to an action.<br /> ;final judgment:A decision which completely and finally determines some or all of the issues in a legal action, following which there is no other recourse open to a dissatisfied party except an appeal.<br /> ;jurisdiction:This word has a number of meanings such as 1) the authority of the court to hear an action and make orders, 2) the limits within which a court must operate, 3) the limits of the authority of a particular judicial official, 4) the authority of a government to make legislation as determined by the constitution, and 5) the geographic location of a court.<br /> ;justice of the peace:A court official appointed by the provincial government with a defined decision-making authority.<br /> <br /> ==L==<br /> ;Land Title and Survey Authority:The department of the provincial government responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may lie against a parcel of property.<br /> ;lawyer's fees:The fees a lawyer charges his or her client pursuant to their retainer agreement, for the lawyer's services. Most lawyers bill by the hour with a premium for success or the difficulty or novelty of the case. A lawyer's bill may include disbursements, which are costs incurred by the lawyer for such things as couriers, filing documents in court and photocopying.<br /> ;leading questions:Question asked of a witness which suggest their answers, normally asked during cross-examination, such as "You've never worked a day in your life, have you?"<br /> ;lease:An agreement such that the owner of a piece of property (a car or an apartment, for example) gives up the right to occupy and use that property in exchange for something else like money. A "lessor" is the person who retains ownership of the property. a "lessee" is the person who gets the right of possession in exchange for payments to the lessor.<br /> ;legal description:With respect to real property, the full formal identification of a particular piece of property by its lot number, district lot number, plan number and land district, rather than by its street address.<br /> ;legislate:To create, amend and revoke written laws governing things, people and places. a right of the provincial and federal governments to pass and rescind laws derived from the Constitution.<br /> ;legislation:An act, a statute. A written law created by a government.<br /> ;litigant:A party to a legal action, such as a Claimant or Respondent in the Supreme Court, or an Applicant or Respondent in the Provincial Court.<br /> ;lay litigant:A party to a legal action who is not represented by a lawyer and acts on his or her own behalf. "Lay" in this context means amateur.<br /> <br /> ==M==<br /> ;maintenance:In family law, usually refers to payments made by one party to the other to defray that person's daily living expenses or for the living expenses of the a child. also known as support.<br /> ;marriage:A legal and emotional relationship between two people, solemnized by a religious functionary or marriage commissioner, giving rise to certain mutual rights, benefits and obligations.<br /> ;marriage-like relationship:A quality of a romantic relationship indicating the nature of their parties' committment to each other as lovers and partners. A legal requirement for a couple to be considered common-law spouses. A couple in marriage-like relationship live together, share chores together, describe themselves as a couple, and their friends and family think of them as a committed couple.<br /> ;master:A provincially-appointed judicial officer with the limited authority deal with certain issues and certain court processes, including interim applications.<br /> ;material:In law, relevant, important. A "material fact" is a fact relevant to a claim.<br /> ;material <sup>def2</sup>:The term for the collective set of all documents, such as court forms, written argument, case authorities, and any exhibits for evidence, submitted by a party in the course of an adjudicative proceeding. <br /> ;matrimonial home:In family law, the dwelling occupied by a family as their home.<br /> ;mediation:A dispute resolution process in which a third party with special training, a mediator, helps the parties to a dispute find a resolution to that dispute.<br /> ;memorandum of understanding:A document setting out the essential terms of an agreement reached between two or more people, often used as a guide to the negotiation of a final, more detailed and more complete agreement.<br /> ;minutes of settlement:A document setting out the essential terms of an agreement or settlement reached between two or more people, produced after negotiations and signed by the parties and their lawyers to record the agreements reached to date. Minutes of Settlement are normally used as the foundation of a future final order or agreement, and are often attached to that order or agreement as a schedule.<br /> ;misrepresentation:Acts or words tending to give a false impression as to the true state of affairs.<br /> ;mistake:In contract law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error, including entry into an otherwise binding contract.<br /> ;mortgage:The conditional transfer of ownership in a piece of property to someone else, while retaining possession of the property, to secure a loan. The party to whom the title is given, the mortgagee, usually a bank, is allowed to register the title of the property in his or her name if the person making the transfer, the mortgagor, fails to repay the loan.<br /> ;motion:In law, an application to the court for an order, usually brought after the commencement of an action but before its conclusion following trial or by settlement before trial.<br /> <br /> ==N==<br /> ;natural parent:The biological parent of a child, as distinguished from adoptive parents and stepparents.<br /> ;negotiate:In family law, the process by which a contract or agreement is formed, usually consisting of the mutual compromise of the parties' original positions, through discussion and bargaining, to the extent tolerable by each party.<br /> ;'''non compos mentis''':A Latin phrase meaning "not of sound mind." A person who is ''non compos mentis'' is under a legal disability.<br /> ;notary public:A person authorized to take oaths and affirmations, and execute or certify certain documents. All lawyers are notaries public in addition to being barristers and solicitors.<br /> ;Notice of Appeal:A legal document required by the rules of court which notifies a party of the other party's intent to appeal a decision.<br /> ;Notice of Family Claim (Form F3):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person bringing a family law case, the court the claim will be heard in and the person's Address for Service.<br /> ;Notice of Application (Form F31):A legal document required by the Supreme Court Family Rules setting out the relief claimed by a person making an application, the grounds on which that relief is claimed and the date on which the application will be heard.<br /> ;null and void:Invalid. A nullity. Of no legal force and effect. Curiously, null and void mean the same thing.<br /> <br /> ==O==<br /> ;oath:An affirmation of the truth of a statement by one's faith in a god. Someone making an affidavit may give his or her evidence in that affidavit under oath. a witness giving oral evidence may give his or her evidence in court under oath.<br /> ;obligation:A duty at law, whether contractual, moral or legal in origin, to do or not do something.<br /> ;offer:In contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement proposal.<br /> ;offer to settle:A document setting out a formal offer made by one party to the other prior to the trial of an action describing the terms on which the party is prepared to settle the action without trial. Offers to settle can have important consequences, particularly with respect to the award of costs if the offer is close to what the judge decides following trial.<br /> ;officer of the court:Any official of the court, including lawyers, court clerks and judges.<br /> ;omission:A failure to do something, whether intentional or unintentional.<br /> ;order:A mandatory direction of the court, binding upon the parties to a legal action. An "interim order" is a temporary order obtained by an inteirm application. A "final order" is a permanent order and the product of either the trial of the action or the settlement of the parties before trial, following which the only recourse open to a dissatisfied party is to appeal the decision. Orders made with the agreement of the parties are called "consent orders."<br /> ;Ownership:A usually exclusive right to possess and use a thing.<br /> <br /> ==P==<br /> ;the doctrine of paramountcy:The rule that federal legislation on a subject is superior to and takes precedence over any provincial legislation on the same subject.<br /> ;'''parens patriae''':A Latin phrase meaning "parent of the country," the court's inherent jurisdiction to deal with issues concerning persons under legal disabilities.<br /> ;parent:In family law, the natural or adoptive father or mother of a child. may also include stepparents, depending on the circumstances and the applicable legislation.<br /> ;party:In law, a person making or defending an action. someone either asserting a claim in a legal action or subject to a claim made in an action.<br /> ;paternity test:A scientific test performed to determine the parentage of a child, usually performed by DNA testing of the blood or saliva of the alleged parent(s) and the child.<br /> ;peace officer:A person having a duty to enforce the law as a result of his or her employment, including police officers as well as sheriffs, customs officers, and mayors.<br /> ;pecuniary:Relating to money.<br /> ;perjury:Intentionally lying to the court while giving evidence under oath or affirmation. also applies to lying in a sworn document, such as an affidavit. This is an offence.<br /> ;personal property:Chattels, goods. property other than real property.<br /> ;Petition (Form F73):A court document used to commence specific kinds of legal action. The person bringing the action is the Petitioner and the person against whom the action is brought is the petition respondent. An action can only be started by a Petition in certain circumstances. most often actions are started with a Notice of Family Claim.<br /> ;pleadings:A legal document setting out either a claim or a defence to a claim. Usually, the pleadings consist of the Notice of Family Claim, Response to Family Claim and Counterclaim.<br /> ;possession:In law, the right to have the control and use of a thing, but not necessarily the right to own that thing.<br /> ;precedent:This word has a number of meanings, including 1) the historic decisions of the courts, 2) the principle that those decisions are binding on subsequent judges hearing cases of a similar nature or in similar circumstances, and 3) templates or sample documents used to draft a new document.<br /> ;premises:In real property law, a piece of property and a building situated on it, usually, the area of the property surrounding a building on that property. Also, the foundation of a logical argument.<br /> ;'''prima facie''':A Latin phrase meaning "first face," refers to a fact which ought to be obvious.<br /> ;privilege:In law, the duty a lawyer has to keep his or her client's information confidential, including communications between the lawyer and client and advice given to the client. A lawyer cannot reveal privileged communications even to the court, except in certain usual circumstances.<br /> ;proceeding:In law, the whole of the conduct of a legal action, from beginning to end, and all steps in between. may also be used to refer to a specific hearing or trial.<br /> ;proof:Evidence which establishes or tends to establish the truth of a fact. also, the conclusion of a logical argument.<br /> ;'''quantum meruit''':A Latin phrase meaning "the amount of deserved." Refers to payment for a service according to the value of the service rendered.<br /> <br /> ==Q==<br /> ;quash:To set aside or vacate an order or judgment.<br /> ;question of fact:An issue arising where the parties disagree about a material fact relevent to a legal action, when only one party can be right. A court's decision about what the facts of a case are is a "finding of fact."<br /> ;question of law:An issue about which law should be applied in a legal action, or how the law should be applied in the circumstances of a particular action. A court's decision about how the law should be applied to the facts of case or about what the law is in a particular situation is a "finding of law."<br /> <br /> ==R==<br /> ;real property:A piece of land and the buildings on that land. Real property is different from chattels or other personal property because it cannot be moved.<br /> ;rebut:In law, to reply to an argument, a statement of fact or a legal presumption by presenting argument or evidence to the contrary. providing evidence which tends to disturb a presumption.<br /> ;registrar:An officer of the court with the power to make certain decisions, including the terms of a judge's order. also, an officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings.<br /> ;court registry:A central office, located in each judicial district, at which the court files for each legal action brought in that district are maintained, and at which legal documents can be filed, searched and reviewed.<br /> ;regulations:A kind of lesser legislation giving supplemental rules to a particular act. Regulations are created and amended by the government, not the Legislature or Parliament.<br /> ;relief:In law, an order sought by one party to a legal action as set out in his or her pleadings. Where more than one remedy or order is sought, each remedy sought is called a "head of relief."<br /> ;reply:In law, an answer or rebuttal to a claim made or a defence raised by the other party to an action.<br /> ;requisition:A court form (Forms F17, F29 & F35) prescribed by the Supreme Court Family Rules with which a party asks the court registry staff to perform a task (like searching a file) or asks the registrar to make a procedural order (like an order that a party be served substitutionally).<br /> ;residence:The place a person permanently lives. This is different from a person's "domicile" in that a person's residence is more concrete and less changeable in nature. A person's residence can have an impact on the court's authority to hear and decide a legal action.<br /> ;respondent:The person against whom a claim has been brought. Formerly known as the defendant.<br /> ;Response to Family Claim (Form F4):A legal document required by the Supreme Court Family Rules setting out Respondent's position on each of the orders sought by the Claimant in the Notice of Family Claim as well as the Respondent's Address for Service.<br /> ;restraining order:An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of assets, and stopping someone from harassing someone else.<br /> ;resulting trust:In family law, a finding by a court that one party holds property in trust for another as a result of the parties' intention to make a trust. A trust relationship inferred by operation of law.<br /> ;retainer:This word means several things such as 1) the act of hiring of lawyer, 2) the money paid to a lawyer to hire his or her services, and 3) the terms and extent of a lawyer's work on behalf of a client.<br /> ;review:In law, the re-examination of a state of affairs, an order or an agreement, usually to determine whether the terms of an agreement or order are still appropriate. A separation agreement or an order may state that a particular term is "reviewable" at a certain date. On that date the circumstances of each party are re-examined to determine whether the term remains appropriate, and whether the term should be cancelled, changed or let alone.<br /> ;rules of court:A set of codified guidelines governing the court process and litigation generally, and providing the official court forms required. The rules of court are particular to each level of court.<br /> <br /> ==S==<br /> ;sale:An agreement to transfer the ownership of property from one person to another in return for something else, like money or another property.<br /> ;separation agreement:A contract between spouses, partners or parents, intended to resolve all or some of the issues outstanding between them as a result of the breakdown of their relationship, and intended to guide the parties in their dealings with one another thereafter.<br /> ;personal service:The personal delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by physically handing the document to the party and verifying the recipient's identity.<br /> ;ordinary service:The delivery of a legal document to a party in an action in a manner complying with the Supreme Court Family Rules, usually by transmitting the document to one of the party's Addresses for Service.<br /> ;Affidavit of Service (Form F15):An affidavit in a form prescribed by the Supreme Court Family Rules sworn by the person who has personally served someone with legal documents, stating that the party was served and describing the circumstances in which service was accomplished.<br /> ;substituted service:Service in a way other than service as prescribed by the rules of court, in the manner and on the conditions imposed by an order of the court.<br /> ;settlement:A resolution of a legal action or of one or more matters at issue in that action, made by the agreement of the parties to that action, as opposed to resolution of the matter by the court following a trial or hearing.<br /> ;spouse:According to the ''Divorce Act'', a spouse is a person who is legally married to someone else, whether of the same or a different gender. Under the ''Family Relations Act'', this term also includes unmarried couples who have lived together in a marriage-like relationship for a period of at least two years.<br /> ;spousal support:Money paid by one spouse to the other to help cover the recipient's living expenses. Also called alimony and maintenance.<br /> ;'''stare decisis''':A Latin phrase meaning "standing by the thing decided," refers to the common law principle that courts are obliged to follow the decisions of the courts before them on the same subjects.<br /> ;'''status quo''':A Latin phrase meaning "the state that was," refers to whatever circumstances or conditions previously existed and, usually, had existed for some time.<br /> ;subpoena:A legal document issued either by the court or by a party which compels a witness to attend court to give evidence, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court.<br /> ;suit:A law suit, an action, a court proceeding, a case. A claimant's claim against a respondent.<br /> <br /> ==T==<br /> ;taxation:A hearing in which a client challenges a lawyer's bill and a lawyer proves his or her bill. A taxation hearing is held before a master or a registrar who examines the account to determine whether the account is fair. The master or registrar assesses the bill and issues a Certificate of Fees stating what amount is properly payable by the client or refundable by the lawyer.<br /> ;tenancy in common:A kind of ownership of a property by two or more persons such that each owner has a distinct and severable share in the property. A tenant in common may chose to sell his or her share in that property independently from other owners.<br /> ;testator:In estate law, a person who has made a will used in reference to that will. The delightful feminine form of this word is "testatrix."<br /> ;testimony:A statement made by a witness to a court as evidence, or made in an affidavit, made under oath or affirmation as to the truth of the statement.<br /> ;third party:A person named in an action or joined to an action who is neither the Claimant nor the Respondent. A third party may be joined to an action where the Respondent believes that the person has some responsibility for the cause of action.<br /> ;title:In law, having legal ownership of a thing. a document evincing legal ownership of a thing.<br /> ;trial:The testing of the respective claims and defences of the parties to an action through the presentation of evidence and legal argument at a formal hearing before a judge with the jurisdiction to hear the matter and to make a final, binding determination of the claims.<br /> ;trust:In law, a form of possession in which one person holds, deals with and is responsible for property for the benefit of another. A "trustee" is the person who holds the property in trust for the other person. the "beneficiary" is the person for whom the property is held.<br /> ;trustee:One who holds property in trust for the benefit of another.<br /> <br /> ==U==<br /> ;unjust enrichment:Money or benefits unfairly gained by one person at a corresponding expense or loss to another.<br /> ;unlawful:Acts or omissions made contrary to legislation or the common law.<br /> <br /> ==V==<br /> ;vacate:The setting aside or quashing of a decision or order, sometimes effective on the date of the vacation, sometimes with a retroactive effect as if the original order had never been made.<br /> ;validity of marriage:For a marriage to be valid, the spouses must be: not within the prohibited degrees of consanguinity, over the commmon law age of puberty, unmarried at the time of the marriage, and capable of understanding the meaning of marriage.<br /> <br /> ==W==<br /> ;waive:In law, to give up a right or entitlement. to give up the opportunity to assert a right or enforce an entitlement.<br /> ;waste:In law, intentionally or unintentionally allowing the value of a piece of property to diminish through carelessness, neglect or purposeful harm.<br /> ;will <sup>def</sup>:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;Will:A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the ''Estate Administration Act''.<br /> ;witness:A person giving evidence on the person's oath or affirmation as to the truth of the statements made.</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Family_Relations_Act&diff=274 Family Relations Act 2012-12-18T23:13:09Z

<p>209.17.147.129: Created page with "The Family Law Act will come into force on March 18, 2013."</p> <hr /> <div>The Family Law Act will come into force on March 18, 2013.</div>

209.17.147.129 https://wiki.clicklaw.bc.ca/index.php?title=Template:Main_Page_Banner&diff=229 Template:Main Page Banner 2012-12-04T19:46:59Z

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209.17.147.129