Difference between revisions of "Terminology"

|link        = [http://www.familylaw.lss.bc.ca/resources/definitions.php family law terms]}}This section offers my own plain-language definitions of common legal words and phrases.  

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Many of the terms in this section have Latin roots. These terms also make appearances in ''Black's Law Dictionary'' and the ''Canadian Law Dictionary'', and Wikipedia offers a helpful and fairly complete [https://en.wikipedia.org/wiki/List_of_Latin_legal_terms list of Latin terms].

;''ab initio'':A Latin phrase meaning "from the beginning." A marriage that 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 permission of a guardian. In certain circumstances, the abduction of a child by a parent may be a criminal offence.

;account:In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

;act:(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

;''Adoption Act'':A provincial law dealing with the adoption process and the ability to adopt.

;adoptive parent:A person who has assumed the status of a legal parent to a child who is not their biological offspring. See "adoption," "assisted reproduction" and "natural parent."

;advance:In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

;advocate:(1) A lawyer or a person other than a lawyer who helps clients with legal issues, or (2) to argue a position on behalf of someone.  

;affidavit:A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm that the statements made in the affidavit are true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness at trial. See "deponent", "affirm," "oath" and "witness."

;appraisal:A professional estimate of the worth of something, such as a company, a property, an investment, a book of business, a loan, or a debt. In family law, this is sometimes required for the court to determine the value of property such as an art collection or a house.

;apprehend:In law, to take or to seize. In family law, this term usually refers to the taking of a child out of the care of their parents by the police or child welfare authorities.

;argument:In law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge or arbitrator following the presentation of evidence, or to a written summary of argument.

;arrears:Child support or spousal support that is owing because of an order or agreement but is unpaid.

;bastard:A child of unmarried parents; an illegitimate child. Bastards used to be at a profound legal disadvantage; however, the law has changed so that such children are treated no differently than children born of a marriage. The appearance of this definition below that of "barrister and solicitor" is purely coincidental.

;bench:In law, (1) the court, (2) judges as a group, or (3) the place where a judge sits in a courtroom.

;beneficiary:(1) A person for whom a trustee holds a trust, or (2) the recipient or intended recipient of property given in a will. See "heir" and "trust."

;bigamy:The act of going through a form of marriage ceremony with one person while being already married to someone else, or with a person who is already married to someone else. This is a criminal offence in Canada, under section 290 of the ''Criminal Code'', although one that is rarely, if ever, enforced. Bigamous marriages, marriages subsequent to the first, are void ''ab initio''. See "ab initio," "marriage, validity of," and "polygamy."

;cause:In law, (2) a lawsuit, an action, or a cause of action, or (2) the wrongful act of another which gives rise to a claim for relief. See "action" and "cause of action."

;cause of action:The behaviour of a person that gives rise to a claim for relief. For example, a spouse's adultery might give rise to the other spouse's right to claim a divorce. The adulterous act is the cause of action for the divorce claim.

;chattel:Personal property; an item of property other than real estate. See "real property."

;child:A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

;child support:Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

;Child Support Guidelines:A regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.

;constitution:In law, the rules that set out the political and legal organization of a state. The power and authority of the governments, the legislative bodies, and the courts, as well as their limits, all 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 guardian "will have the children on Monday, Tuesday, and Friday" but didn’t say anything about the other guardian, the agreement would be ''constructed'' to mean that the other guardian would have the children on the days that weren't mentioned.

;contempt of court:Doing something or failing to do something that impairs the administration of justice or respect for the court’s authority, such as 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.

;contingency fees:A fee arrangement whereby a lawyer is paid by taking a percentage of the money awarded to their 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."

;contract:An agreement between two or more people, giving them obligations towards each other that can be enforced in court. 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.  

;contract law:The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are usually, but not always, applicable to family law agreements.

;counsel:(1) A lawyer, or (2) the advice given by a lawyer to their client.

;Court of Appeal:The highest level of court in the province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts, and certain tribunals. See "appeal."

;court proceeding:A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

;court registry:A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed.

;covenant:A promise to do or not do a particular thing. See "contract," "family law agreements," and "separation agreements."

;cross-examination:The portion of a trial where a party asks questions of a witness presented by the other party in order to challenge the witness’s recollection and truthfulness. The questions asked of the witness must be relevant to the issues and may be leading, that is, the questions may suggest their answers, for example "You didn't get home until 2:00am, did you?" See "examination-in-chief," "evidence," and "leading question."

;Crown:In law, (1) the federal and provincial governments and their departments and agencies, or (2) lawyers employed by the federal and provincial governments to prosecute criminal offences.

;cruelty:In family law, the physical, verbal, emotional, or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the cruelty. See "condonation" and "divorce, grounds of."

==D==

;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.

;decision:In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

;declaration:In law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order."

;deem:(1) To make an assumption that one thing follows logically from another, (2) a presumption of a fact based on the existence of other facts, or, sometimes, (3) a presumption of a fact required by law, such as the presumption that a respondent who files a Response to Family Claim has been served with the Notice of Family Claim.

;''Divorce Act'':Federal legislation that deals with divorce, custody and access, child support, spousal support, and the recognition of divorce orders made outside of Canada.

;divorce, grounds of:The ''Divorce Act'' provides one ground upon which the court may make a divorce order, marriage breakdown. Marriage breakdown may be established on proof of the spouses' separation for at least one year, a spouse's adultery, or a spouse's cruelty toward the other spouse. See "adultery," "cruelty," "divorce," and "separation."

;domestic contract:In family law, an agreement between two or more persons about legal issues that have arisen or may arise, dealing with their respective rights and obligations to one another, that the parties expect will be binding on them and will be enforceable in court. Typical domestic contracts include marriage agreements, cohabitation agreements, and separation agreements.

;domicile:(1) The place where one has one’s permanent home, where one lives most of the time, or, sometimes, (2) 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 a court proceeding, deal with certain claims made in a court proceeding, or determine the applicable law for dividing up property and debt. See "jurisdiction" and "residence."

;''Family Relations Act'':Former provincial legislation that dealt with custody, guardianship, access, child support, spousal support, and, for married spouses, the division of family assets. Now wholly repealed except for certain lingering effects involving the division of property and agreements made or proceedings started before the ''Family Law Act'' became law. See "''Family Law Act''."

;final judgment:A judge's decision that finally determines some or all of the claims in a court proceeding, following which there is no other recourse open to a dissatisfied party except an appeal. See "decision."

;finding:A conclusion made by a judge which decides a point of law or a fact in dispute.

;finding of fact:A judge’s conclusion about the facts in a court proceeding, made after hearing all the evidence. See "decision," "error of fact" and "question of fact."

;J.D.:To practise law in British Columbia, one requires a law degree in the form of either a Bachelor of Laws degree (LL.B.) or a Juris Doctor degree (J.D.). “LL.M." stands for a Master of Laws degree and “LL.D." for a Doctor of Laws. A J.D. is the same thing as an LL.B. but sounds way more impressive.

;joint account:A bank account owned 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 tenancy:A form of property co-ownership in which each joint tenant has a right of ownership of the whole property that is indistinct from the ownership rights of the other joint tenants. In other words, each joint tenant has a right to the whole property. See "tenancy in common."

;judge:A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.  

;lawful:Conduct that is permitted both by the law. See "unlawful."

;lawyer:A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

;lay litigant:A party to a court proceeding who is not represented by a lawyer and acts on their own behalf, also referred to as a litigant without counsel, a self-represented litigant, and a ''pro se'' litigant. "Lay" in this context means without professional training. See "action," "lawyer" and "litigant."

;leading question:A question asked of a witness, normally during cross-examination, which suggests the answer. For example: "You've never worked a day in your life, have you?" See "cross-examination."

;''non compos mentis'':A Latin phrase meaning "not of sound mind.” A legal disability arising from mental infirmity. See "disability."

;notary public:A person authorized to administer affirmations and oaths, and to execute or certify documents. All lawyers are notaries public in addition to being barristers and solicitors. See "barrister and solicitor.”

;Notice of Application:A legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief."

;Notice of Family Claim:A legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief."  

;''parens patriae'' jurisdiction:A Latin phrase meaning "parent of the country" and an English word. Refers to the court's inherent jurisdiction to deal with issues concerning persons under a legal disability, including children. See "children," "disability," "inherent jurisdiction" and "jurisdiction."

;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; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

;parenting arrangements:A term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."

;parenting coordination:A child-focused dispute resolution process used to resolve disputes about parenting arrangements and the implementation of a parenting plan set out in a final order or agreement. See "alternative dispute resolution" and "parenting coordinator."

;parenting coordinator:A lawyer or mental health professional with special training in the mediation and arbitration of family law disputes, family dynamics, and child developmental psychology who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "arbitration" and "mediation."

;parol evidence:Oral evidence given in court, as opposed to written or physical evidence. See "evidence" and "witness."

;partition:In law, the division of the ownership of a piece of real property between two or more people. See "real property."

;peace officer:A person having a duty to enforce the law as a result of their position or employment, including municipal police officers as well as RCMP officers, sheriffs, customs officers and mayors, among others.

;pecuniary:Relating to money, which is exactly what someone who is "impecunious" doesn't have a great deal of. See "indigent."

;perfected:In contract law, finished, legally complete, and enforceable; executed. A "perfected" agreement is one that has been dated and signed by all parties in the presence of one or more witnesses.

;performance:In contract law, the fulfillment of an obligation or duty arising from a contract.

;privilege:In law, (1) the duty a lawyer has to keep their client’s information confidential, including communications between the lawyer and client and advice given to the client, or (2) the client's right to have their confidential communications kept secret and protected from disclosure. See "lawyer."

;probate:The process of checking the validity of a will, distributing a dead person’s estate, and settling their debts according to the instructions set out in that person's will. See "estate" and "will."

;proceeding:In law, (1) the whole of the conduct of a court proceeding, from beginning to end, and the steps in between, may also be used to refer to (2) a specific hearing or trial. See "action."

;proof:(1) Information which establishes or tends to establish the truth of a fact, or (2) the conclusion of a logical argument. See "evidence" and "premises."

;question of fact:An issue arising where the parties disagree about a fact relevant to a court proceeding, when only one party can be right. A court's decisions about the facts of a case are called the court's findings of fact. See "finding of fact."

;question of law:An issue about which law should be applied to determine a court proceeding or about how the law should be applied in a proceeding. A court's decision about which law applies or how it should be applied is a finding of law. See "finding of law."

==R==

;release:In family law, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim."

;relief:In law, an order sought by a party to a court proceeding or application, usually as described in their pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings."

;reply:In law, an answer or rebuttal to a claim made or a defence raised by the other party to a court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."

;Reply:A legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim" and "Counterclaim."

;Response to Family Claim: A legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings."

;respondent:The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."

;resulting trust:In family law, the finding by a court that a party holds all or a part of their property in trust for someone else as a result of the parties' intention to make a trust; a trust relationship inferred by operation of law. See "constructive trust" and "trust."

;retainer:(1) The act of hiring of lawyer, (2) the money paid to a lawyer to secure their services, or (3) the terms and extent of a lawyer's services on behalf of a client.

;sale:An agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement."

;self-represented litigant:A party to a court proceeding who is not represented by a lawyer and acts on their own behalf; also called a lay litigant, a litigant without counsel or a ''pro se'' litigant. See "action," "lawyer" and "litigant."

;separation:In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

;service ''ex juris'':An English word combined with a Latin phrase meaning service "outside the jurisdiction;" refers to service of legal documents on someone living outside of British Columbia in the manner required by the rules of court or by a court order. See "personal service."

;settlement:A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

;''sine die'':A Latin phrase meaning "without a day." An application adjourned ''sine die'' has been adjourned without a specific date being set for the hearing to resume, often in the expectation that it will never need to be set for hearing. See "adjournment" and "application."

;special costs:Special costs, unlike ordinary costs, are intended tp approximate the fees charged by a lawyer. They are awarded by the court, usually in exceptional circumstances, to address a party's misconduct in the course of a proceeding, especially where the party has abused the court’s process, mislead the court, or persistently breached of the rules of court. See "bad faith," "costs" and "frivolous and vexatious conduct."

;spousal support:A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

;spouse:Under the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

;standing:The right of a person to bring a particular claim under a particular act before a particular court. In most cases, someone who does not have a direct interest in a dispute will lack standing to be a party in a proceeding.  

;''stare decisis'':A Latin phrase meaning "stand by the thing decided." Refers to the common law principle that courts are obliged to follow the decisions of the courts before them, known as "precedent." See "common law" and "precedent."

;style of cause: The information at the top of all court forms in a proceeding, including the file number, the name of the registry the proceeding is filed in, the name of the court, and the parties' names.  

;subpoena:A legal document, issued by the court or by a party pursuant to the rules of court, which compels a person to attend court to give evidence as a witness, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court. See "contempt of court," "evidence" and "witness."

;suit:(1) In law, a court proceeding, a lawsuit, a legal action, a case, or (2) a claimant's claim against a respondent. (3) In fashion, menswear designed to inflict maximum discomfort at maximum cost. See "action."

;Supreme Court:Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

;Supreme Court of Canada:The highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court."

==T==

;tenancy in common:A kind of co-ownership of property in which two or more owners have distinct, separate shares in the common property. A tenant in common may choose to sell or mortgage their share of the property independently from other owners. See "joint tenancy."

;term of art:A phrase that has a particular meaning in law that is usually distinct from the common English meaning of the phrase, like the phrase "term of art."  

==U==

;unjust enrichment:A legal remedy when money, services, or other benefits are unfairly received by one person at a corresponding loss to the person providing the money, services or benefits. See "constructive trust."

;unlawful:Acts or omissions that are contrary to legislation or the common law. See "lawful."

;vacate:In law, the decision of a court to set aside or quash an earlier decision or order, sometimes as if the original order had never been made, and other times effective only as of the date the order is vacated. See "appeal," "decision" and "quash."

;vendor:A seller of a thing. See "sale."

;verdict:In law, a judge's conclusions after hearing the arguments and considering the evidence presented at a trial or an application; a judgment, the judge's reasons. Usually used in a criminal law context to indicate the judge's conclusions as to the guilt or innocence of an accused person. See "decision."

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