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FAQs

Glossary

These definitions may help you understand family law terms, but are not legal definitions.  For a legal definition of these terms, you may wish to consult a lawyer.

Abduction: unlawfully removing a child under the age of 16 by someone without the permission of the parent with custody.  If the person removing the child is a parent, they can be charged with abduction if the child is below the age of 14.

Access:  the right of a child and a parent without custody to spend time together.  It is sometimes known as visiting rights.

Act: A law passed by Parliament or the Legislature. It is also called a “statute”.

Adjournment: Postponement of court proceedings, usually at the court’s discretion.

Affidavit:  a signed written statement that is sworn or affirmed.

Affidavit of Service: A court document that contains written facts that the maker swears to be true, and is used to prove that another document was served

Affirmation: A solemn declaration by a person who declines to take an oath.

Age of majority: A person at the age of majority is legally an adult in the province or territory in which he or she lives. If the child normally lives outside Canada, the child's age of majority is presumed to be 18.

Allege: To suggest that something that has not yet been proven is in fact true.

Annual income: the amount of money a person earns from all sources, including employment, self-employment and investments in one year.

Appeal: The judicial process by which one party to an action resorts to a superior court to correct what he or she perceives to be an incorrect determination of the original proceedings.

Appellant: the person/party who appeals the decision. 

Applicant:  a person who makes an application to the court.

Arrears: The amount of child support owing when a paying parent falls behind in making child support payments.

“Best interests of the child”:  the only consideration of a judge when deciding custody and access.  It is defined in the Family Services Act as: 
the best interests of the child under the circumstances taking into consideration:

  1. the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;
  2. the views and preferences of the child, where such views and preferences can be reasonably ascertained;
  3. the effect upon the child of any disruption of the child’s sense of continuity;
  4. the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;
  5. the merits of any plan proposed by the Minister;
  6. the need to provide a secure environment that would permit the child to become a   useful and productive member of society through the achievement of his full potential according to his individual capacity; and
  7. the child’s cultural and religious heritage.”

Case law: The law based on decisions by judges. Case law reflects how the courts
interpret laws.

Child: a person who has not reached the age of majority.  Under the Family Services Act, a child is an unmarried person under the age of 19.

Child Support: parents have a legal obligation to financially support their children.  A parent without custody can pay child support to the parent with custody to help provide for the child.  Payments can be arranged by agreement or by court order.

Child of the marriage: The Divorce Act defines a child of the marriage as “a child of two former spouses.” The term applies to both birth and adoptive children. It may also include children of one spouse for whom the other spouse acted “in place of a parent”. As well, it may include children who have reached the age of majority, but are dependent on their parents.

Commissioner of Oaths:  a person who is legally appointed to administer an oath.

Contempt of Court:  failure to comply with an order of a court; an act of resistance or insult to the Court.  Interfering with the administration of justice or ignoring the Rules of Court.

Court: the Judge; a judicial tribunal; the place where justice is administered.

Costs:  legal costs, whether actual amount of costs or an amount decided following the Court of Queen's Bench Rules.

Court Order:  a legally binding document made by a court and signed by a judge.

Court Administrator:  the person who runs the administrative side of the Court of Queen’s Bench, Family Division.

Cross-examination:  When a witness has been called by either party, the opposite party has a right, after direct examination, to question that witness.

Custody:  the care and control of a child.

Custody Agreement:  any agreement with respect to custody, care or control of a child.

Custody Order:  a court order that deals with custody, care or control of a child.

De facto custody:  an informal custody arrangement.  Often after a break up the children will live with one parent without making formal legal arrangements for custody.

Divorce:  the legal end of a marriage.

Divorce Act: The federal law that sets out the rules for legally ending a marriage.

Domestic Legal Aid:  a program that helps people with some family law matters.

Evidence:  testimony by witnesses, objects identified by witnesses or documents that are presented to the court to help the court reach a decision.  Information to prove or disprove the existence of an alleged fact. 

Exhibit:  A document or object, formally introduced as evidence in court.  Also, a document that is attached to an affidavit as evidence, marked as an exhibit and signed by the witness to the affidavit.

Family Law:  the legal rights and obligations between family members, husband and wife, parent and child, and unmarried couples.

Family Division, Court of Queen’s Bench:  a provincial superior court with jurisdiction over all matters in family law under provincial or federal legislation. 

Federal Child Support Guidelines: The regulations under the Divorce Act that apply when setting child support amounts. The guidelines consist of a set of rules and tables. The guidelines are the law.

Federal Child Support Tables: The tables are part of the Federal Child Support Guidelines. They show the basic amount of child support based on income. There is a separate table for each province and territory to reflect different tax rates between provinces and territories.

Filing documents: Adding documents to a court file by giving a copy to the Registrar at the court office. Sometimes requires payment of a filing fee or charge.

Financial Statement: A court document that sets out a person's financial information in a detailed and specific way.

Habitually Resident:  Under the Family Services Act, a child is habitually resident in the place where the child last lived, either:

  1. with both parents, 
  2. with one parent under a separation agreement, a court order or with the implied consent of the other, or
  3. with a person other than a parent on a permanent basis for a significant period of time.

Hearing:  a proceeding:  the presentation of evidence in court.

Hearsay:  Evidence given by a witness based on information received from others rather than personal knowledge.

Imputing income: If a judge feels that the amount of income a parent claims is not a fair reflection of his or her income, he may attribute (impute) income to that person. For example, the judge may attribute income where a parent is exempt from paying federal or provincial income tax, or where a parent refuses to show income information when under a legal obligation to do so.

Interim Order:  a court order that only lasts temporarily, usually until there is a final decision in the case.

Joint Custody:  a custody arrangement where both parents continue to share the responsibility to care for the child.  Both parents make the decisions about the child’s upbringing, even though the child may live with only one.  Both parents must be willing to co-operate with each other.

Judgment:  the decision of the court in a legal proceeding.

Jurisdiction:  the court’s authority to hear the case before it.

Lawyer:  A person authorized to practice law.

Limitation period:  A legally specified period beyond which proceedings cannot be brought.

Maintenance:  another word for child and spousal support.

Maintenance enforcement: Legal means of compelling child support payments. The
Provinces and Territories are primarily responsible for enforcing child support orders and agreements.

Marriage:  Although sometimes the law treats people who live together the same as married people, you are never married until you go through a legal marriage ceremony.

Mediation:  a way to settle family matters through negotiation with the help of a third person. The purpose of mediation is to help people work out an agreement more constructively.

Motion:  a procedure where a party asks the court to make a decision on a certain question before, during or after a court proceeding.

Oath:  a legally binding promise to tell the truth made by swearing on the Bible or other religious document, for example, the Koran. A person who does not want to swear on a religious document makes an affirmation.  This is as legally binding as an oath

Parent:  a mother or father, an official guardian or a person with whom the child lives who has shown an intention to treat the child as his or her family.

Parenting arrangements: The arrangements parents make for their children after separation or divorce, including where the children will live and how the parents will make decisions about things like schooling and healthcare.

Party:  someone involved in a court proceeding.

Perjury:  to tell a lie in court after having sworn to tell the truth.  It is a criminal offence.

Proceedings:  any matter, criminal or civil, which goes to court.

Relevant:  Information is relevant if it helps to show a fact that will decide the issue.

Respondent:  the person who can reply to a Notice of Application or motion when
someone else makes an application to the court.

Separation Agreement:  a written agreement between spouses who intend to live apart.  It can include arrangements for custody and access, spousal and child support payments, and other matters.

Serving documents: Delivering court documents to another person, using a specific method following the Court of Queen's Bench Rules.

Shared custody: The Federal Guidelines use the term “shared custody.” Shared custody can apply if both parents have the child in their care for at least 40 percent of the time over the course of the year.

Sole Custody:  a custody arrangement where only one parent has the legal right and responsibility to provide for the day-to-day care of the child, and to make the decisions about the child’s upbringing.

Special expenses:  Special or extraordinary expenses are expenses that the table amounts (Child Support) may not cover.  Under the guidelines, special expenses must be: necessary in relation to the child's best interests, and reasonable given the means of the parents and the child and the family's spending pattern before the separation.  For example, these expenses could include day-care expenses, expenses for postsecondary education, or orthodontic expenses.

Split custody: Split custody describes an arrangement where: one or more children live with one parent more than 60 percent of the time in the year, and one or more children live with the other parent more than 60 percent of the time in the year.

Spousal Support:  the money that a spouse or a common law partner receives from a separated spouse or partner to help pay for living expenses when the couple separates. Support is usually paid on a monthly basis.

Spouse:  a legally married person or in some cases a person in a voidable or void marriage, but not common law partners in general.

Summons:  a Court form (Form 55A) telling a person when and where he or she must appear as a witness.

Supervised Access:  the parent without custody can only visit the child in the presence of the custodial parent or another adult.

Support Order:  a court order to pay spousal or child support.

Testimony:  statements made by a witness under oath in court.

Trial: A judicial examination and determination of issues between parties before a judge, with or without a jury.

Uncontested hearing: A hearing in court that takes place and no one opposes, or disagrees with what is asked for.

Under Oath:  having taken an oath, the witness is bound to only tell the truth or that person is liable for perjury.

Undue hardship: In general, undue hardship refers to excessive financial difficulties. Under the guidelines, either parent may ask for a different child support amount at a higher or lower level if the parent or the child is experiencing undue hardship.

For example, this provision could apply where a parent has incurred unusually high debts from supporting the family prior to the separation. A two-step test must be used to determine undue hardship. First, it must be determined whether the parent requesting the change is in circumstances that would make it difficult either to pay the required amount or to support the child on that amount. Second, the standards of living of both households must be compared. The income of every member of both households must be looked at to compare standards of living. If the parent claiming undue hardship cannot prove that his or her household's standard of living is lower than the other parent's, the claim for undue hardship must be rejected.

Variation order: A court order that changes some or all of the terms of an existing order.

Viva voce: By word of mouth; orally.

Witness:  a person who testifies in court because he or she has some information about the case.

 

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