Terminology

A

ab Initio

A Latin phrase meaning "from the beginning." A marriage which is unlawful is "void ab initio," as if it never happened.

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.

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.

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."

account

In law, a lawyer's bill to his or her client. Also, a statement of one person's view of events.

act

A law passed by a government, also called "legislation" or a "statute." Also, the intentional doing of a thing.

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.

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.

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."

Adoption Act

A provincial law dealing with entitlement to adopt and the adoption process.

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."

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."

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.

Advisory Guidelines

See "Spousal Support Advisory Guidelines."

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.

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."

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."

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."

agent

In law, someone acting on behalf of someone else, with that person's express permission and normally their express direction.

alias

A name by which people know you other than your legal name. Aliases are not illegal in British Columbia.

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.

alimony

Spousal support; spousal maintenance. See "Spousal Support."

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.

alternative

See "In the Alternative."

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.

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."

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.

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."

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."

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.

appellant

The party who brings an appeal of a lower court's decision. See also "Appeal" and "Respondent."

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."

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."

application respondent

A party against whom an interim application has been brought. See also "Interim Application" and "Applicant."

apportion

In family law, to divide equally, usually referring to the division of family assets between spouses. See also "Reapportion."

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.

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.

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.

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.

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.

assent

Agreement, approval.

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."

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.

attest

To swear or affirm something to be true, usually in the context of oral evidence or affidavit evidence.

B

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.

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.

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.

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.)

Bench

Refers to the court, judges as a group, and the place where a judge sits in a courtroom.

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."

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.”

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."

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.

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."

bona fide

A Latin phrase meaning "in good faith;" doing something honestly and openly, without intending to mislead, deceive or harm someone else.

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."

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.

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.

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."

C

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.

case

In law, a law suit; an action; a cause of action; litigation. Also refers to historic decisions of the court.

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.

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.

child support

Money paid by one parent to the other to help defray a child's living expenses. Also known as maintenance and palimony.

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.

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.

claimant

The person who starts a legal action seeking orders against another party, the respondent. Formerly known as the plaintiff.

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.

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."

cohabitation

Living with another person in a "marriage-like relationship" while legally unmarried. shacking up. living in sin. playing house.

collusion

An agreement to do something with another person towards an illegal goal.

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.

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.

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.

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.

concur

To agree.

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.

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.

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.

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.

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.

consent

Agreement. making a choice of one's own free will after giving the matter thought.

consent order

A court order that all parties to an action agree the court should make. Consent orders may be interim or final.

consortium

The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other.

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.

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.

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.

constructive trust

In family law, a trust relationship imposed to remedy the unjust enrichment of one party.

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.

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.

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.

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.

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.

Counterclaim (Form F5)

A legal document required by the Supreme Court Family Rules setting out the relief claimed by a Respondent against a Claimant.

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.

covenant

A promise to do or not do a particular thing.

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.

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.

D

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.

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.

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.

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.

deem

To make an assumption that one thing follows from another. a presumption of a fact based on proof of other facts.

de facto

A Latin phrase meaning "in fact."

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.

default Judgment

A judgment obtained by a claimant following the respondent's failure to reply to his or her claim within the proper time.

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.

denial

Defending a claim by denying the truth of a fact supporting the claim. a rejection of the truth of facts alleged.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

duress

Forcing someone to do something, usually by psychological or emotional pressure, which that person is not obligated to do.

duty

A legal obligation to do or not do something, whether under the common law or pursuant to legislation.

E

encumbrance

A debt secured against property, such that a default on repayment gives the creditor a right to possess or sell the encumbered property.

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.

error of law

A ground of appeal claiming that the trial judge did not apply the law correctly in reaching his or her decision.

estate

The sum of the property owned by a person or in which he or she has an interest.

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.

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.

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.

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.

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.

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.

F

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.

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.

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.

finding

A conclusion made by a judge, determining a point of law or a disputed fact.

finding of fact

A judge's conclusion about the facts of a case, made after hearing all the evidence.

forum

In law, a court or level of court, sometimes used in reference to the court's jurisdiction.

free and clear title

Real property owned without encumbrances on the title and without any other debt or obligation attached to the property.

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."

G

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.

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.

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.

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.

guardianship

In family law, being charged with the legal care of a child's person and estate.

H

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.

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.

heirs

In estate law, the people intended or expected to receive property or other benefit under a will. a person's direct lineal descendants.

I

indemnify

To repair harm or loss suffered by another.

infant

A person not yet of the age of majority. a minor. a child.

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.

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.

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.

in personam

A Latin phrase meaning "against the person;" a right against a person as opposed to a right involving a thing.

in rem

A Latin phrase meaning "against the thing;" refers to a right against objects or property rather against a person.

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.

instructions

In law, the directions given by a client to his or her lawyer about the conduct of a case.

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.

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.

interlocutory

Literally, "between speakings;" refers to interim applications brought or orders made after the commencement of a legal action but before its conclusion.

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.

intestate

Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the Estate Administration Act.

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."

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.

J

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.

joint custody

A situation in which both parents together have custody of their children.

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.

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.

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.

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.

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.

justice of the peace

A court official appointed by the provincial government with a defined decision-making authority.

L

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.

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.

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?"

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.

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.

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.

legislation

An act, a statute. A written law created by a government.

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.

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.

M

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.

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.

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.

master

A provincially-appointed judicial officer with the limited authority deal with certain issues and certain court processes, including interim applications.

material

In law, relevant, important. A "material fact" is a fact relevant to a claim.

matrimonial home

In family law, the dwelling occupied by a family as their home.

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.

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.

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.

misrepresentation

Acts or words tending to give a false impression as to the true state of affairs.

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.

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.

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.

N

natural parent

The biological parent of a child, as distinguished from adoptive parents and stepparents.

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.

non compos mentis

A Latin phrase meaning "not of sound mind." A person who is non compos mentis is under a legal disability.

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.

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.

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.

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.

null and void

Invalid. A nullity. Of no legal force and effect. Curiously, null and void mean the same thing.

O

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.

obligation

A duty at law, whether contractual, moral or legal in origin, to do or not do something.

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.

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.

officer of the court

Any official of the court, including lawyers, court clerks and judges.

omission

A failure to do something, whether intentional or unintentional.

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."

Ownership

A usually exclusive right to possess and use a thing.

P

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.

parens patriae

A Latin phrase meaning "parent of the country," the court's inherent jurisdiction to deal with issues concerning persons under legal disabilities.

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.

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.

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.

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.

pecuniary

Relating to money.

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.

personal property

Chattels, goods. property other than real property.

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.

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.

possession

In law, the right to have the control and use of a thing, but not necessarily the right to own that thing.

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.

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.

prima facie

A Latin phrase meaning "first face," refers to a fact which ought to be obvious.

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.

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.

proof

Evidence which establishes or tends to establish the truth of a fact. also, the conclusion of a logical argument.

quantum meruit

A Latin phrase meaning "the amount of deserved." Refers to payment for a service according to the value of the service rendered.

Q

quash

To set aside or vacate an order or judgment.

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."

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."

R

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.

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.

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.

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.

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.

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."

reply

In law, an answer or rebuttal to a claim made or a defence raised by the other party to an action.

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).

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.

respondent

The person against whom a claim has been brought. Formerly known as the defendant.

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.

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.

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.

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.

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.

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.

S

sale

An agreement to transfer the ownership of property from one person to another in return for something else, like money or another property.

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.

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.

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.

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.

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.

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.

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.

spousal support

Money paid by one spouse to the other to help cover the recipient's living expenses. Also called alimony and maintenance.

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.

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.

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.

suit

A law suit, an action, a court proceeding, a case. A claimant's claim against a respondent.

T

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.

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.

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."

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.

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.

title

In law, having legal ownership of a thing. a document evincing legal ownership of a thing.

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.

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.

trustee

One who holds property in trust for the benefit of another.

U

unjust enrichment

Money or benefits unfairly gained by one person at a corresponding expense or loss to another.

unlawful

Acts or omissions made contrary to legislation or the common law.

V

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.

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.

W

waive

In law, to give up a right or entitlement. to give up the opportunity to assert a right or enforce an entitlement.

waste

In law, intentionally or unintentionally allowing the value of a piece of property to diminish through carelessness, neglect or purposeful harm.

will ^def

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.

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.

witness

A person giving evidence on the person's oath or affirmation as to the truth of the statements made.