Difference between revisions of "Terminology"

;application:A request to the court that it make an order for specific relief, usually on an interim or temporary basis.

;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.

;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.

;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.

;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.

;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."

;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.

;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.

;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==

;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.

;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.

;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.

;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.

;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."

;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.

;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.

;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.

;indemnify:To repair harm or loss suffered by another.

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

;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.

;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.

;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.

;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.

;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.

;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.

;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.

;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.

;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.

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

;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.

;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.

;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.

;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.

;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.

;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.

;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."

;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.

;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.

;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.

;'''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.

;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.

;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.

;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.

;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.

;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.