Family Law Glossary (3:App A)
- A judicial pronouncement declaring a marriage invalid. Although it is commonly thought that an annulment has the same effect as if the marriage never took place, it is still possible to divide property under Part 5 of the Family Relations Act.
- Person seeking a court order. In Provincial Court, the parties are called the applicant and the respondent, but they are claimant and the respondent under the Family Law Act, Family Relations Act and the Divorce Act.
- Under the Divorce Act: a “‘child of the marriage’ is a child of two spouses or former spouses who... is under the age of majority and who has not withdrawn from their charge, or is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”.
- Under the Family Law Act: “a person who is under 19 years of age or a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians.
- Under the Adoption Act: “an unmarried person under the age of 19 years”.
- Caring for a child on a day-to-day basis. Custody can be either sole or joint.
- A judgment given by the Court in the form of a declaration, such as a s 57 (Family Relations Act) declaration that there is no possibility of reconciliation.
- Anyone who relies on another to support him or her.
SERVICE EX JURIS
- When the person to be served is outside the province.
- As in filing pleadings, affidavits, property and financial statements, etc. in court. A document is filed at the court registry and forms part of the court record.
- Involves the right to be consulted on matters relating to the child’s upbringing, such as religion, education, extracurricular activities, social environment, etc. The Family Law Act states that a person cannot become a child’s guardian by agreement except if the person is the child’s parent or as provided under the FLA, Adoption Act or Child, Family and Community Service Act. Please note that the definition of guardianship varies between the FLA and the Divorce Act.
- An order that is granted prior to the making of a final order. The order is good until a further order of the Court or agreement between the parties is made. The final order will not automatically be the same as the interim order. An interim order to determine custody and asset management while the matter is still in dispute is common in many divorce proceedings.
INTERIM EX PARTE ORDER
- A temporary order made when one party is not present by reason of lack of notice. This order is usually only granted in an emergency, such as the kidnapping of a child.
IN LOCO PARENTIS
- Where someone who is not the biological parent of a child steps in and takes over all the duties and responsibilities of a parent for that child. This commonly includes stepparents.
NOTICE OF FAMILY CLAIM
- Documents that must be filed to commence most formal proceedings in the Supreme Court, for divorce and corollary relief.
- The person who presents a petition to start an action in a court or legislature. There is no longer any such thing as a divorce petition, a Writ of Summons or Statement of Claim. Now there is a specialized Notice of Family Claim and, in particular cases such as adoptions, a Petition to Court.
- Person against whom a court order is sought. In Provincial Court, the parties are called the applicant and the respondent, but they are called the claimant and the respondent under the Supreme Court Family Rules and the Divorce Act.
- The act of delivering a document such as a Notice of Family Claim to a person is known as personal service. There is a distinction between personal service and ordinary service in the Supreme Court Family Rules; see Part 6 for details. In the Provincial Court (Family) Rules, see Rule 3.
- Family Law Act: 3(1): a person is a spouse for the purposes of this Act if the person(a) is married to another person, or (b) has lived with another person in a marriage-like relationship, and: (i) has done so for a continuous period of at least 2 years, (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
- Divorce Act: “either of a man or woman who are married to each other”.
- Supreme Court Family Rules: either a legally married spouse or “a man or woman not married to each other, who lived together as husband and wife for a period of not less than two years” and who made an application under the Act within one year of separation. Same-sex partners are now viewed as common law spouses provided the marriage-like relationship lasts for at least two years and the application for relief is commenced within one year of separation. The definition of “stepparent” includes a same-sex partner who also qualifies as a same-sex spouse (see s 1 of the Family Relations Act regarding the definition of spouse).
- Estate Administration Act: under s 85, parties must have cohabited for two years AND the claiming spouse must have been maintained AND the two years must run immediately preceding the death or a person who is united to another person by a marriage that, while not legal, is valid at common law.
- Wills Variation Act: the definition includes:
- a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or,
- b) a person who has lived and cohabited with another person, for a period of at least two years immediately before the other person’s death, in a marriage-like relationship, including a marriage-like relationship between persons of the same gender.
- In British Columbia, the common law definition of a spouse evolves alongside the definition of a “marriage-like relationship”. The following are considerations from Richardson Estate (Re), 2014 BCSC 2162 which arose as guiding questions in the determination of whether a couple is engaged in a marriage-like relationship, though the approach of the courts has been to treat these as considerations in a holistic determination of marriage-like relationships rather than a comprehensive checklist:
- (1) Shelter:
- a. Did the parties live under the same roof?
- b. What were the sleeping arrangements?
- c. Did anyone else occupy or share the available accommodation?
- (2) Sexual and Personal Behaviour:
- a. Did the parties have sexual relations? If not, why not?
- b. Did they maintain an attitude of fidelity to each other?
- c. What were their feelings towards each other?
- d. Did they communicate on a personal level?
- e. Did they eat their meals together?
- f. What, if anything, did they do to assist each other with problems or during illness?
- g. Did they buy gifts for each other on special occasions?
- (3) Services: what was the conduct and habit of the parties in relation to
- a. Preparation of meals,
- b. Washing and mending clothes,
- c. Shopping,
- d. Household maintenance,
- e. Any other domestic services?
- (4) Social:
- a. Did they participate together or separately in neighbourhood and community activities?
- b. What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
- (5) Societal:
- a. What was the attitude and conduct of the community towards each of them and as a couple?
- (6) Support (economic):
- a. What were the financial arrangements between the parties regarding the provision of or contribution towards the necessities of life (food, clothing, shelter, recreation, etc.)?
- b. What were the arrangements concerning the acquisition and ownership of property?
- c. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
- (7) Children:
- a. What was the attitude and conduct of the parties concerning children?
- (1) Shelter:
- When an applicant, for a good reason, cannot serve the respondent personally because that person cannot be found, the Court may make an order providing for service in some other way (i.e. by letter, advertisement, or service on a relative).
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