Understanding legal terminology can be difficult. Here are some terms that you might come across throughout your separation and divorce.
A
Access: The opportunity to visit with a child. Under the terms of the Divorce Act, 1985, a spouse exercising access rights is also entitled to information about the child’s health, welfare and education, unless a court orders otherwise.
Adultery: Sexual intercourse by a husband or wife with someone of the opposite sex who is not his or her spouse. You can establish a marital breakdown with adultery. (Note: a gay or lesbian relationship will not constitute adultery but may constitute mental cruelty).
Adversarial System: Canada’s Court system resolves disputes between two opposing parties. The parties present their respective sides of an issue through evidence. The judge then acts as an impartial arbiter, weighing the evidence and deciding how the law applies in each specific case.
Affidavit: A sworn statement, typed and signed by a person involved in a family law matter. It is sworn under oath before someone, usually a lawyer, and then they file it in support of a motion.
Appeal: When a person affected by a Judge’s decision believes that the Judge has made a mistake, that person can ask a higher level of Court to review the decision. The Court reviewing the decision can uphold it, change it, or send the matter back to the original Court for reconsideration. There are strict time limits on this type of review.
Application: A Court proceeding starts with the filing of certain documents with Court officers and then serving copies of the documents on other persons affected. Provincial and territorial rules of Court procedure determine details of the material the application includes, the document format, and the filing fees.
B
Best interests test: This is the overriding consideration in custody and access matters. The Court then searches for that which will best serve the child’s interests.
C
Child: The Divorce Act defines a “child of the marriage” as a child of both spouses, a child of one of the spouses towards whom the other spouse acts like a parent or a child towards whom both spouses act as a parent. Biological children, adopted children, and children looked after by the spouses may all be considered children of the marriage. The custody and support provisions of the divorce law apply to a child of the marriage who is under sixteen years of age or who is over sixteen and remains dependent on his or her parents because of illness, disability or other reasons.
Cohabitation agreement: A domestic contract signed by a man and woman who are living together or intend to live together but not marry. In it they may provide for ownership and division of property, support and any other matter affecting their relationship except custody of and access to children.
Collusion: An agreement or conspiracy to fabricate or suppress evidence, or to deceive the Court. If evidence to support a divorce application is the result of collusion, the application can be rejected.
Condonation: The forgiveness of a matrimonial offense with full knowledge of the circumstances, followed by an acceptance of the offending spouse back into the family. You cannot revive a forgiven offense later date as a basis for a divorce. A legal opinion may be necessary to decide if a matrimonial offense has been condoned by the subsequent actions of the other spouse.
Common-law spouse: Almost all of the provinces recognize that some men and women live together without marrying. While the precise definition varies from province to province, it means achieving the status of a spouse for some legal purposes, such as support, in the province.
Confidentiality: Certain people are protected by law from having to give any evidence in court regarding communications between them. Communications between a lawyer and a client have this special protection. A Court-appointed reconciliator also has this protection with regard to communications made in the course of attempting to reconcile spouses.
Most professional associations have ethical guidelines regarding the confidentiality of communications between members and their clients. These guidelines form a very important part of the professional relationship. However, they do not necessarily provide protection from disclosure in Court.
Contempt of Court: A method the Court uses to control its own process. It is willful disobedience of a Court Order punishable by fine or imprisonment or both.
Contested divorce: If either the husband or wife disputes the ground for divorce, or if the spouses are unable to agree on child-care or support arrangements, a Court will have to resolve these matters. The Court holds a hearing and both sides of the dispute present evidence supporting their view. The judge will consider the evidence presented and impose a solution.
Costs: Sums payable for legal services. When matters are contested in Court, a Judge has the discretion to order that the losing party pay a portion of the successful party’s legal costs.
Custody: Control over a child given to an adult by the Court. This control generally includes physical care of the child and the responsibility to make decisions.
D
Dependent: A person who relies on someone else for financial support. In the context of divorce law, it may include a spouse or child.
Disbursements: Out-of-pocket expenses incurred in a family law matter, such as the cost of paying for the Statement of Claim for Divorce to be filed at the Court office or the cost of paying someone to personally serve it on your spouse. It could also be the cost of a family law assessment.
Discoveries: A step in legal proceedings where lawyers get to ask the opposing client, under oath, questions about things said in the legal proceedings, especially in Affidavits and pleadings. Discovery is done in the presence of a Court reporter. They then prepare a transcript of all questions and answers.
Divorce: The termination of the legal relationship of marriage between two people.
Divorce certificate: The actual piece of paper that officially describes the termination of the marriage. In order to get a marriage license, you need a divorce certificate as proof of your divorce.
Domestic violence (or “wife assault”): The intent by the husband to intimidate, either by threat or by use of physical force on the wife’s person or property. The purpose of the assault is to control her behaviour by the inducement of fear.
F
Fees and disbursements: The bill. This is a statement you will receive monthly, periodically, or in one lump sum at the end of the proceeding. The fee is for the lawyer’s time, which is determined by a number of factors including the amount of time spent on the file. Disbursements are out-of-pocket expenses.
Final order: An Order that is not interim. Interim Orders are effective until the end of the trial. Until the Court changes the final Order, it lasts indefinitely.
G
Garnishee: A legal procedure that allows for the seizure of money owing to a person who has not paid a Court-ordered debt. A Court may order the debtor’s bank, employer, or anyone else who may owe money to the debtor, to pay the money into Court to help pay the debt.
I
Interim orders: There may be a considerable period of time between the initial filing of a divorce application and the date on which a Court is able to grant a divorce and related support, custody or access Orders. On request, a Court can make a temporary Order for the interim period to stabilize custody or access arrangements or to provide financial support for a spouse or child.
J
Joint custody: Parents continue to share responsibility for making major decisions that affect their children, regardless of where they live on a day-to-day basis. Such arrangements require a commitment on the part of both former spouses to co-operate for the benefit of the children. Joint custody also does not eliminate the obligation of both parents to provide financial support for the children.
Judgment: The final decision by the Court on any issues put to it during the trial. The formal piece of paper that describes who has been successful or not and on which issues.
L
Limitations: Time limits imposed by the laws and Rules of Court. If certain things are not done (claim support, division of property) then the right to claim is lost unless the Court grants special permission.
Litigation: Resolving a dispute by using the Courts and the adversarial process.
M
Marriage: The voluntary union for life of one man and one woman to the exclusion of all others. It creates the legal status of husband and wife and the legal obligations arising from that status.
Marriage breakdown: The sole ground for legally ending a marriage under the terms of the Divorce Act, 1985. It can be established in three ways: through evidence that one spouse committed adultery; physical or mental cruelty; or that the spouses intentionally lived separate and apart for at least one year.
Marriage contract: An agreement between a husband and wife outlining the spouses’ respective responsibilities and obligations. Some contracts also include agreements as to how property and ongoing obligations will be shared if the marriage breaks down.
Matrimonial home: Where the family or legally married couple have resided. Common-law spouses never have them (as recognized in law) because they have no statutory property rights. It is possible to have more than one at a time.
Matrimonial settlement agreement: A written agreement between the parties settling the differences. It can deal with property, custody, access, support and any other matter. Sometimes also called a “Separation Agreement”.
Mediation: A process by which people in situations of potential conflict attempt to resolve their differences and reach a mutually acceptable agreement. Neutral third parties can often help the parties retain a focus on the problems to be solved and possible solutions.
Motion: A request to the Court for a particular Order pending trial, such as interim custody or support. Filed with an Affidavit.
O
Order: The Court’s decision on a matter to resolve. See Motion and Affidavit.
P
Parties: Anybody who is named in the case before the Court asking for an Order of any kind.
Pension: A fixed sum paid regularly to a person or surviving dependent following his or her retirement. There are both public (Canada Pension Plan) and private (from one’s own employer) pensions. Some provinces consider a pension that is not yet being paid at the time of marriage breakdown to be a property that must be divided.
Pleadings: The written description of each person’s claims in a family law matter. It must be prepared in accordance with the province’s Rules of Practice.
Procedure: The technical rules that lawyers must follow to get a case through the civil justice system.
R
Restraining order: An Order that prohibits contact between two spouses and in some cases their children. It can also be a blanket prohibition or it can provide for specific contact at specific times and under specific circumstances.
Retainer: The contract by which you hire a lawyer to take your case and sum of money you give the lawyer for fees and disbursements.
S
Separate: To cease living together as man and wife, possibly under the same roof but usually not. Done with the intention not to live together again.
Separation agreement: A contract signed by the parties to settle their differences. It can deal with property, custody, access, support and any other matter. A form of domestic contract.
Shared parenting: Another term used instead of joint custody. It is the sharing of decision making for the children.
Spousal support: An Order that one spouse pays the other a sum of money. It can be either in a lump sum or periodically for a set period of time or indefinitely.
Spouse: The person that you married.
Statement of Claim for divorce: The formal document by which one person asks the Court to dissolve his or her marriage.
Statement of Claim for divorce and division of matrimonial property: The formal document by which one person asks the Court to dissolve his or her marriage to another and for distribution of the assets acquired during the marriage.
Statute: A law passed by the legislature of a province or the federal Parliament (e.g. the Divorce Act, 1985)
U
Uncontested divorce: If neither party disputes the ground for divorce, and if they are able to reach an agreement regarding child care and financial arrangements, it may be possible to ask a Judge to grant a divorce without a lengthy Court hearing. It may also be possible to get a divorce without having to actually appear in Court at all.
V
Variation: If the circumstances which justified making a particular support, custody or access Order change, a person affected by the Order can ask a Judge to alter the Order to make it fit the new circumstances.