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Plain-language definitions of legal words and phrases commonly used in family law.
A
Ab Initio — A Latin phrase meaning “from the beginning.” A marriage which 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 other parent’s permission. In certain circumstances, this may be a criminal offence.
Abrogate — To revoke or annul. One “abrogates” a contract, like a family agreement, by doing something expressly contrary to the agreement. One party’s act of abrogation may not void the agreement, but will give the other party a cause of action.
Access — A parent’s time with his or her children following the breakdown of the parents’ relationship. Access usually refers to the visits of a child with the parent who doesn’t have the child’s primary residence. See “Custody,” “Guardianship” and “Primary Residence.”
Account — In law, a lawyer’s bill to his or her client. Also, a statement of one person’s view of events.
Act — A law passed by a government, also called “legislation” or a “statute.” Also, the intentional doing of a thing.
Action — A law suit; a legal proceeding in which one party sues another for a remedy or specific relief. An action for divorce, for example, is a court proceeding in which the Claimant sues the Respondent for the relief of an order for the parties’ divorce.
Address for Service — The address at which a party must accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addreses for service may include postal addresses, fax numbers and email addresses.
Adoption — In family law, the act or process of taking another person’s natural child as one’s own. The child then becomes the adopting parent’s legal child as if the child were the adopting parent’s natural child, while the natural parent loses all rights and obligations with respect to the child. See “Natural Parent.”
Adoption Act — A provincial law dealing with entitlement to adopt and the adoption process.
Adoptive Parent — A person who has formally assumed the status of parent to a child who is not his or her biological offspring. See “Adoption” and “Natural Parent.”
Adultery — The act of a married person voluntarily engaging in sexual intercourse with a person other than his or her spouse; cheating; playing around; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act. See also “Collusion,” “Condonation” and “Divorce, Grounds of.”
Advance — In family law, this usually refers to one party obtaining a share of his or her portion of the family assets before those assets have been divided, whether following trial or a final settlement of the matter.
Advisory Guidelines — See “Spousal Support Advisory Guidelines.”
Advocate — A lawyer; sometimes a person other than a lawyer who presents and argues a case in court on behalf of a party to the proceeding. Also, to argue a debated position.
Affidavit — A legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally under oath. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit about the truth of its contents. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements orally before a judge at trial. See “Deponent” and “Witness.”
Affirm — To promise that a statement is true. When someone “swears” to tell the truth, they are considered to be taking an oath on their faith in a god. Affirming is a substitute for taking an oath, and is most often employed where person making the statement is an atheist or under a religious proscription from making oaths. See “Affidavit,” “Oath” and “Witness.”
Age of Majority — The age at which someone becomes a legal adult with the full capacity to act on their own, independent of their parents, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See “Disability” and “Infant.”
Agent — In law, someone acting on behalf of someone else, with that person’s express permission and normally their express direction.
Alias — A name by which people know you other than your legal name. Aliases are not illegal in British Columbia.
Alienating — In family law, the actions or statements of one parent which tend to sever, damage or harm his or her child’s relationship with or affections for the other parent.
Alimony — Spousal support; spousal maintenance. See “Spousal Support.”
Allegation — An assertion that a certain set of facts is true, such as “on Monday, I had soup for lunch” or “Bob drives a blue Camaro.” Also called an allegation of fact or a statement of fact.
Alternative — See “In the Alternative.”
Alternative Dispute Resolution — A phrase referring to a family of processes intended to resolve disputes outside of the court system, including arbitration, mediation, negotiation and collaborative law. In family law, the purpose of ADR is to offer a less adversarial and less expensive way to resolve a dispute than having to go to court and have a judge resolve things.
Amend — To change or alter a pleading or document which has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the “Amended Notice of Family Claim” or the “Amended List of Documents.”
Amicus Curiae — A Latin phrase meaning “friend of the court.” Usually refers to a lawyer who does not act for any of the parties and assists or brings relevant information to the attention of the presiding judge.
Annulment — A declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occured. See “Ab Initio,” “Declaration” and “Validity of Marriage.”
Answer — A response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a “Response to Family Claim” or a “Reply.”
Appeal — An application to a higher court for a review of the decision of a lower court and, hopefully, the reversal of that decision. A decision of a judge of the Supreme Court of British Columbia can, for example, be appealed to the Court of Appeal for British Columbia for review.
Appellant — The party who brings an appeal of a lower court’s decision. See also “Appeal” and “Respondent.”
Applicant — A party to an action who brings an application to the court for certain relief. Usually refers to the party who has brought an interim application before the court. See also “Interim Application” and “Application Respondent.”
Application — A request to the court that it make an order for certain relief, usually on an interim or temporary basis. See also “Interim Application,” “Motion” and “Relief.”
Application Respondent — A party against whom an interim application has been brought. See also “Interim Application” and “Applicant.”
Apportion — In family law, to divide equally, usually referring to the division of family assets between spouses. See also “Reapportion.”
Appraisal — A professional estimate of the worth of certain property. In family law, this is sometimes required for the court to fix the value of assets such as an art collection or a house.
Apprehend — In law, to take; to seize. In family law, this term usually refers to the taking of a child out of the care of his or her parents by the child welfare authorities.
Arbitrator — A person selected by the parties to a dispute to resolve their dispute outside of court, who is given the authority to impose a decision on the parties.
Argument — In law, persuasion by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence about the facts of a case, or to a written brief of argument.
Arrears — Money which is unpaid but supposed to have been paid pursuant to an order or agreement. Usually refers to outstanding money owed for spousal support or child support.
Assent — Agreement, approval.
Assess — To determine the value or amount of something. A lawyer’s bill may be “assessed” by a registrar to determine the actual amount the client should pay. See “Appraisal.”
Assign — In law, to transfer an interest or right in something to someone else. People who go on welfare, for example, are required to assign their rights to apply for child support and spousal support to the provincial government.
Attest — To swear or affirm something to be true, usually in the context of oral evidence or affidavit evidence.
B
Bad Faith — Intentionally misleading someone else, whether by doing or not doing something; acting in a manner contrary to one’s actual intention; an intentional failure to act honestly and openly. Also known by the Latin phrase male fides.
Bar, the — In law, refers to both the physical railing separating the public gallery in a courtroom from the portion where the judge and lawyers sit and to lawyers as a group.
Barrister and Solicitor — A lawyer; a person licenced to practice law in a particular jurisdiction. In England “barristers” do trial work and “solicitors” draft legal documents. In Canada, lawyers are both barristers and solicitors.
Bastard — A child of unmarried parents; an illegitimate child. Bastards used to be at a certain legal disadvantage, however the law has changed so that such children are treated equally with children born of a marriage. Bastard children are, for example, equally entitled to child support and access with both parents as legitimate children are. (The appearance of this definition below that of “Barrister and Solicitor” is purely coincidental.)
Bench, the — Refers to the court, judges as a group, and the place where a judge sits in a courtroom.
Beneficiary — The person for whose benefit a trustee holds a trust; the recipient or intended recipient of property given in a Will. See “Heir,” “Trust” and “Will.”
Bigamy — Being married to more than one person at the same time, whether the marriage ceremonies were held separately or at the same time. This is a criminal offence in Canada, unlike Utah. Bigamous marriages, subsequent to the first marriage, are void ab initio. See “Ab Initio” and “Validity of Marriage.”
Bill — In law, a lawyer’s statement of account for services rendered to his or her client. Also, a piece of legislation presented to the legislature for its approval. See “Act” and “Lawyer’s Fees.”
Bill of Costs — In British Columbia, an account prepared by a party who is awarded their costs of an action or application and presented to the other party for payment. A Bill of Costs is prepared according to a formula set out in the Supreme Court Family Rules.
Binding — In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge’s order is “binding” in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court’s decision on a point of law must be adopted by a lower court. See “Contempt” and “Precedent.”
Bona Fide — A Latin phrase meaning “in good faith;” doing something honestly and openly, without intending to mislead, deceive or harm someone else.
Breach of Contract — Acting or not acting in a manner contrary to the terms of an agreement. In family law, the breach of one party usually gives rise to a cause of action for the other party, but the breach is unlikely to allow the other party to treat the agreement as if it were cancelled or void. See “Abrogate.”
Brief — In law, a written argument; a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief.
Burden of Proof — The obligation of a party to prove his or her case; the onus of proof. The burden of proof usually lies on the party who makes a claim, although in certain circumstances, usually by operation of statute, this burden is reversed. In civil litigation, a party must prove his or her case on the balance of probabilities.
Business Assets — In family law, assets owned either wholly or partly by one spouse relating to a company or corporation and not used for family purposes. Business assets are usually not subject to division between spouses, unlike family assets. See “Family Assets.”
C
Calendar Days — A method of calculating time under which the days for a legal deadline are counted as they appear in the calendar, including weekends and holidays. See “Clear Days.”
Canadian Charter of Rights and Freedoms — Also known as the Charter, the part of the Constitution Act, 1982 which sets out the fundamental rights and freedoms shared by all Canadians, including the freedoms of religion and expression and the rights to life and liberty. Neither the federal nor the provincial governments can pass laws or act in ways contrary to the Charter. Certain sections of the Charter, particularly the portions dealing with equality rights, have a special importance for family law. For example, the way that the provincial Family Relations Act treats unmarried and married couples differently for the purposes of dividing their assets may be contrary to the equality guarantees set out in the Charter.
Case — In law, a law suit; an action; a cause of action; litigation. Also refers to historic decisions of the court. See “Action” and “Precedent.”
Case at Bar — The case presently before the court; the case being argued.
Cause — In law, a law suit, an action, a cause of action. Also, the wrongful act of another which gives rise to a claim for relief. See “Action.”
Cause of Action — A claim in law against a party based on particular facts; the wrongful act of another which gives rise to a claim for relief. For example, one spouse’s adultery gives rise to the other spouse’s right to claim for a divorce; the adulterous act is the other spouse’s cause of action for the divorce claim.
Certificate of Costs — A document endorsed by a Master or Registrar stating the amount owed as “costs” by one party to the other after a trial, usually issued following a hearing to “settle” the amount of the costs justly owed. A Certificate of Costs is equivalent to a judgment of the Supreme Court and can be used to enforce payment of the costs owed just like a judgment debt.
Certificate of Fees — A document endorsed by a Master or Registrar stating the amount a client owes to his or her lawyer, issued following a hearing to “tax” a lawyer’s bill and determine what portion of the lawyer’s bill was reasonable and is properly owed to or refundable by that lawyer.
Certificate of Pending Litigation (CPL) — A document filed in the Land Title and Survey Authority against the title of a piece of real property stating that the property is the subject of litigation and that ownership of the property may change as a result; formerly called a lis pendens. In family law, a CPL is used to protect the interest of one party in a piece of property owned by the other party by notifying potential purchasers or mortgagees about the litigation and the posibility that the property might change hands. See also “Clear Title,” “Encumbrance” and “Real Property.”
Chattel — An item of personal property. Distinguished from “real property” in the sense that chattels can be picked up and taken from place to place, whereas of real property is immovable. See also “Real Property.”
Child Support — Money paid by one parent to the other to help defray a child’s living expenses. Also known as maintenance and palimony.
Child Support Guidelines — A federal regulation which sets out the amount of child support a parent must pay based on the parent’s income and the number of children involved, and provides rules about the calculation of child support. The tables that set out the basic amount of support payable differ from province to province.
Circumstantial Evidence — Evidence which doesn’t prove a fact but allows a court to logically infer a fact; indirect proof of a fact. For example, a fixed amount of money deposited every two weeks into someone’s bank account may allow the court to infer that the person has a job even though there is no direct evidence of that person’s employment.
Civil Action — A non-criminal law suit. All family law actions are civil actions.
Civil Marriage Act — A piece of federal legislation that expands the common law definition of spouse to include persons of the same gender.
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.
Claimant — The person who starts a legal action seeking an order for certain relief against another person, the Respondent. See “Action” and “Respondent.”
Clear Days — A method of calculating time under which the days for an action to occur are counted by excluding the first day and the last day in the period. For example, a court order obtained on Monday that says that some can apply to vary the order on “two clear days’ notice” means that the soonest the person could apply is Thursday. Monday, the day the order was obtained, is exluded. Tuesday is the first clear day; Wednesday is the second and last clear day. Thursday is the first day after the end of the clear day period. See “Calendar Days.”
Clear Title — Ownership of property without any debt, liens or claims being registered against the property. For example, owning a piece of land without a mortgage or a CPL on the property, or owning a car without a car loan. See “Certificate of Pending Litigation.”
Coercion — The use of force or intimidation, whether emotional or physical, to compel another person 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.”
Cohabitation — Living with another person in a “marriage-like relationship” while legally unmarried; shacking up; living in sin; playing house. See also “Marriage-like Relationship” and “Spouse.”
Collusion — An agreement to do something with another person towards a usually illegal goal. In family law, the court must satisfy itself that there has been no collusion between the parties as to a ground of divorce before a divorce order will be made. For example, spouses might collude to get a divorce by agreeing that would one them would have an affair in order to claim a divorce on the ground of adultery.
Common Law — This phrase has a number of different meanings: 1) a legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; 2) the system of justice used in non-criminal cases in all provinces except Quebec; and, 3) the legal status of an unmarried couple who have cohabited for longer than two years in a marriage-like relationship. See “Marriage-Like Relationship.”
Competent — In law, having the capacity, ability or authorization to do a thing. A person who is competent to give evidence is sane and able to understand the issues and results of his or her evidence. A court which has jurisdictional competence is a court with the authority to deal with the issues in a case and authority over the parties to that case.
Compulsion — See “Coercion” and “Duress.”
Conclusion of Fact — A judge’s decisions as to what the facts of a case are, based on the evidence he or she has heard and his or her evaluation of the credibility of the witnesses giving the evidence. See also “Evidence,” “Question of Fact” and “Witness.”
Conclusion of Law — A judge’s decision as to how the law, both statute law and common law, should be applied to the facts of a particular case. See also “Common Law,” “Conclusion of Fact,” “Question of Law” and “Legislation.”
Concur — To agree.
Concurrent — Happening or existing at the same time. Two courts with concurrent jurisdiction, for example, have the jurisdiction to hear the same case and deal with the same issues.
Condonation — Forgiving the wrongful or harmful act of another. In family law, usually refers to the forgiving of an act of adultery or cruelty and the continuation of the parties’ relationship as it had been before. For example, if one party forgives another’s adultery and their relationship continues on, that party has condoned the other party’s adulterous act. See also “Adultery,” “Cruelty, Mental or Physical” and “Divorce, Grounds of.”
Conjugal Rights — A somewhat outdated idea involving each spouse’s entitlement to the benefits of the different aspects of married life from the other, including the comforts of living together, eating at the same table, sympathy, mutual confidence, sex, and so forth.
Connivance — Intentionally causing or permitting a wrongful act to obtain a goal. In family law, consipiring towards the adultery of the other spouse for the purpose of claiming adultery as a ground of divorce. A divorce will not be granted where connivance as to the ground of divorce relied on is found. See “Adultery,” “Collusion,” “Condonation” and “Divorce, Grounds of.”
Consanguinity — Being related to another person by blood. For a marriage to be valid, the parties must not be within the prohibited degrees of consanguinity or adoption. See “Marriage” and “Validity of Marriage.”
Consent — Agreement; making a choice of one’s own free will.
Consortium — The marital relationship between spouses, specifically the right of each spouse to the company and aid of the other. See “Conjugal Rights.”
Conspiracy — The agreement of two or more people to perform an unlawful act or to do a lawful act by unlawful means. A conspirator is a party to a conspiracy. See “Lawful.”
Constitution — The rules which set out the political and legal organization of a state. The power and authority of the governments and the courts, as well as their limits, 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 1 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 parent “will have the children on Monday, Tuesday and Friday” but didn’t say anything about the other parent, the agreement would likely be “constructed” to mean that the other parent would have the children on the remaining days.
Constructive Trust — In family law, the finding by a court that one of the parties to a relationship, whether married or unmarried, holds a portion of his or her assets for the benefit of the other party without an express agreement to that effect between the parties. For a court to make this finding, it must be satisfied that one party has been deprived of something (time, labour, money and so forth) to the unfair benefit of the other party with no legal reason for that deprivation. See “Resulting Trust” and “Trust.”
Contempt of Court — Doing something or failing to do something which impairs the administration of justice or respect for the court’s authority. For example, 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 — An arrangement where a lawyer is paid by taking a percentage of the money awarded to his or her 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.”
Continuance — The continued hearing of an application or trial following a partial hearing at an earlier date. See “Adjournment.”
Contract — An agreement by two or more people which gives them mutual obligations towards each other. 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. See “Family Agreements” and “Separation Agreements.”
Contract Law — The branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are not always applicable to family law agreements.
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. See “Action,” “Order” and “Relief.”
Corporal Punishment — In family law, the physical punishment of a child by a parent or other authorized person. Corporal punishment is permitted under the Criminal Code, but only to a certain extent and only by certain persons, including parents and teachers.
Costs — A party’s legal expenses, stemming from a legal action, as determined by the Supreme Court Family Rules. A party’s “costs” are not the same as his or her lawyer’s account, and usually amount to about a third to half of that account. The party to an action who is more successful than the other is usually awarded their “costs” of the action. See “Account,” “Bill of Costs,” “Certificate of Costs” and “Lawyer’s Fees.”
Counsel — A lawyer, a barrister and solicitor. Also, the advice given by a lawyer to his or her client.
Counterclaim — A court document setting out a claim for relief made by a Respondent against a Claimant. See “Notice of Family Claim” and “Response to Family Claim.”
Court of Appeal — The highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See “Appeal.”
Covenant — A promise to do or not do a particular thing. See “Contract,” “Family Agreements” and “Separation Agreement.”
Cross-Examination — The portion of a trial where a party asks questions of a witness presented by the other party to challenge his or her evidence and truthfulness. The questions asked of the witness must be relevant to the issues and may be leading, that is, the question may suggest the answer. See “Examination-in-Chief,” “Evidence” and “Leading Question.”
Crown — In law, the federal and provincial governments and their departments and agencies. Also, lawyers employed by the government to prosecute criminal offences.
Cruelty — In family law, the physical, verbal, emotional or mental abuse of one spouse by the other. See “Divorce, Grounds of.”
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 slowly overtaking this meaning of custody, particularly in circumstances where the parties share joint custody and joint guardianship of the children. See also “Access,” “Guardianship” and “Primary Residence.”
D
Damages — An award of money payable by one party to the other, usually as compensation for loss or harm suffered as a result of the other party’s actions or failures to act. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse.
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. See “Arrears.”
Decision — In law, a judge’s conclusion after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge’s reasons. A judge’s decision will include both his or her conclusions about the relief claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s Reasons for Judgment; an oral decision is called a Declaratory 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. This should not 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 — To make an assumption that one thing follows logically from another; a presumption of a fact based on other facts. Sometimes, a presumption of a fact required by law.
De Facto — A Latin phrase meaning “in fact.”
Default — In law, failing to do something which is either optional or mandatory, such as failing to respond to an application or to a claim within the time limits set out in the Supreme Court Family Rules. See “Default Judgment.”
Default Judgment — A judgment obtained by a Claimant following the Respondent’s failure to reply the Claimant’s claim within the proper time from service. In the Supreme Court, a Respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without a Response to Family Claim being served on the Claimant, the Claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See also “Desk Order Divorce” and “Response to Family Claim.”
Defence — A reply, rebuttal or answer to an action or application. A Respondent’s defence may attack a Claimant’s claim on the truth of the facts set out by the Claimant, the law applicable to the case, or both.
De Jure — A Latin phrase meaning “by law.” By operation of law; as a matter of law; by legal right.
Delivery — See “Ordinary Service.”
Demand Letter — A letter setting out a legal claim sent to the person against who the claim might be made, offering to settle the claim without the necessity of legal action. Demand letters are usually issued before legal proceedings have commenced.
De Minimus Non Curat Lex — A Latin maxim meaning “the law does not concern itself with trifles,” also known by its short form, de minimus. This maxim stands for the idea that some claims or arguments, while perhaps legitimate, are too small or negligible to be dealt with by the court.
Denial — Defending a claim by denying the truth of a fact supporting the claim; a rejection of the truth of facts alleged.
De Novo — A Latin phrase meaning “anew;” renewed, from the beginning. An application or trial heard de novo is heard for a second time without giving weight to the result of the first hearing. All of the evidence is presented again, together with evidence of events between the first and second hearing, and the arguments are made afresh.
Dependant — A person who relies on someone else for their support and the necessities of life. See “Child” and “Spousal Support.”
Deponent — A person giving information about certain facts under affirmation or oath; a witness. Refers to both a person giving testimony at a trial and a person making an affidavit. See “Affidavit,” “Evidence,” “Testimony” and “Witness.”
Desertion — The abandoment of one spouse by the other; the continued absence of one spouse from cohabitation with the other; a prolonged separation between spouses. This is an old ground of divorce which has been replaced in the modern Divorce Act with simple separation for a period of at least one year. See “Divorce, Grounds of” and “Separation.”
Desk Order Divorce — A process in which a divorce, with or without other relief (such as relief relating to spousal support or the care and control of the children), is obtained following the failure of the Respondent to file a Response to Family Claim. A desk order divorce does not require an oral hearing and is the cheapest way to obtain a divorce order. See also “Corollary Relief” and “Divorce.”
Disability — In law, a legal incapacity to do certain things, like enter into a contract or bring a law suit. Legal disabilities include insanity and being under the age of majority.
Disbar — To strip a lawyer of his or her right to practice law, usually after a formal inquiry by the Law Society.
Discontinuance — The cessation or abandonment of an action by the Claimant, or the abandonment of a counterclaim by a Respondent. The discontinuance of a claim indicates a party’s intention not to proceed with his or her claim. See “Action” and “Counterclaim.”
Discovery, Disclosure and Production — An element of the litigation process in which each party advises the other of the documents in his or her possession which bear on the issues in the action, and the exchange of those documents before trial. This process is regulated by the Supreme Court Family Rules and gives each party an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this exchange is to encourage the settlement of litigation and to prevent trial by ambush, springing new evidence on the other party at trial. Discovery means the formal examination of a party under oath, outside court and in the absence of a judge, about the matters at issue. See “Examination for Discovery.”
Discovery, Examination for — See “Examination for Discovery.”
Dismiss — In law, a judge’s decision to not to grant a claim sought, or to dismiss an action with or without trial. An application which is dismissed has been rejected by the judge. See also “Application.”
Disposition — See “Decision.”
Dissent — Disagreement. Also, the decision of a judge of the Court of Appeal who disagrees with the decision reached by the other judges who heard the same appeal. See “Appeal” and “Court of Appeal.”
Divorce — The legal termination of a valid marriage by an order of the court; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See “Marriage” and “Validity of Marriage.”
Divorce, Grounds of — Under the Divorce Act there is one ground of divorce, marriage breakdown, and three reasons why marriage breakdown may have occurred: separation for a period in excess of one year; adultery; and, mental or physical cruelty. At least one of the grounds must be proven before the court will grant a divorce. See “Adultery,” “Cruelty” and “Separation.”
Divorce Act — A federal law that deals with divorce, custody, child support and spousal support.
Domestic Contract — See “Family Law Agreements.”
Domicile — The place where one has one’s permanent home, where one lives most of the time; sometimes 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 an action or deal with certain claims made in an action. See “Jurisdiction” and “Residence.”
Donee — A person who receives a gift or bequest.
Donor — A person giving something as a gift, freely and without expectation of payment in return.
Dower — A common law entitlement of a wife to a portion on her husband’s estate on his death. This common law right has been extinguished and is replaced by certain provisions of the Estate Administration Act and the Wills Variation Act, both of which grant a spouse certain rights on the death of the other. See the section “Legislation.”
Dowry — In some cultures, the property and/or chattels brought into the marriage by the wife, or, the property given to a wife by her husband in return for her marriage to him. There is no legal entitlement to dowry in Canada, and claims for dowry will not normally be enforceable. See “Chattels” and “Real Property.”
Draft — A non-final version of a document; an order prepared following judgment submitted to the court for its approval; to prepare or “draw” a legal document.
Duress — Forcing someone to do something by psychological or emotional pressure; a defence to the enforcement of a contract. If, for example, a separation agreement was entered into under duress, that may be a ground to dispute or set aside that agreement.
Duty — In law, a legal obligation to do or not do something, whether under the common law or pursuant to legislation. See “Act” and “Common Law.”
E
Election — In law, the making of a free choice.
Enactment — A statute; legislation. See “Act.”
Encumbrance — A third-party right asserted against the ownership of specific property, usually as a result of a debt owed to the third-party. For example, a mortgage secured against real property, or a loan secured against personal property like a car. See “Certificate of Pending Litigation,” “Clear Title” and “Real Property.”
Endorse — In law, to sign a document or otherwise formally signal one’s approval or acceptance of a document, bargain, proposal or contract.
Endowment — In family law, the giving of dower to a wife or dowry by a wife. See “Dower” and “Dowry.”
Enjoin — To prohibit or restrain someone from doing something, normally by order of the court. See “Restraining Order.”
Enticement — In family law, the act of intentionally causing a wife to leave her husband or intentionally interfering with a married couple’s consortium, formerly a common law cause of action. The Family Relations Act expressly forbids legal actions based on enticement. See “Cause of Action,” “Conjugal Rights” and “Consortium.”
Ergo — A Latin phrase meaning “therefore.”
Error of Law — A ground of appeal which asserts that the trial judge did not apply the law correctly in reaching his or her decision. This is the most common ground of appeal. See also “Appeal” and “Common Law.”
Estate — The property which a person owns or in which he or she has an interest.
Et Al. — A Latin phrase meaning “and others,” short for et alia. Usually used in a style of cause to indicate that there are more parties to a legal action than are listed. See “Style of Cause.”
Evidence — Facts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the Supreme Court Family Rules and the rules of evidence. See “Circumstantial Evidence” and “Hearsay.”
Evidentiary Burden — See “Burden of Proof.”
Examination-in-Chief — The portion of a trial where a party asks questions of their own witness to elicit evidence of certain facts. The questions asked of the witness cannot be leading, that is, the answer cannot be suggested in the question. See “Cross-Examination” and “Evidence.”
Examination for Discovery — The cross-examination of a party under oath about the matters at issue in the action, conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties’ lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, under certain circumstances, be used at trial.
Execute — In contract law, to complete or accomplish; to complete the legal formalities necessary to give a document validity. One “executes” a separation agreement, for example, by signing it in the presence of a witness.
Executor — The person responsible for carrying out the instructions in a will and resolving a dead person’s estate and debts. The feminine form of the word is “executrix,” though the masculine form is commonly applied to executrices. See “Estate,” “Testator” and “Will.”
Ex Parte — A Latin phrase meaning “on behalf of one party;” describing an application being made without notice being given to the other party. Such applications are only heard in urgent situations, for example, where a spouse has threatened to flee with the children. See “Application.”
Expert Evidence — Opinion evidence given by an expert at trial or in an affidavit. Opinion evidence is a statement about what a witness thinks or believes, rather than something personally known as a fact, and is generally not admissible at trial as a result. A person presented as an expert to give opinion evidence must be approved by the court as a qualified expert in his or her field. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists. See “Evidence” and “Witness.”
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Family Law Agreements — An agreement between two persons about family law issues, dealing with their respective rights and obligations to one another, and which the parties expect will be binding on them and enforceable in court. Typical family law agrements include marriage agreements, cohabitation agreements and separation agreements.
Family Assets — Assets owned by either or both married spouses and subject to division between the two on the breakdown on their marriage. An asset owned solely by one spouse may be found to be a family asset if it is normally used for a family purpose. Family assets are presumed to be divided between the spouses on an equal basis under the Family Relations Act. See “Business Assets,” “Gifts,” “Inheritances,” “‘Other’ Assets.”
Family Relations Act — A provincial law that deals with: the division of property between married spouses; custody, guardianship and access; child support and spousal support; and, personal and financial restraining orders.
Finding — A conclusion made by a judge, determinative of a point of law or a disputed fact.
Finding of Fact — A judge’s conclusion about the facts of a case, made after hearing all the evidence. See “Decision” and “Question of Fact.”
Finding of Law — A judge’s conclusion about the law to be applied to the facts of a case, or how the law should be applied to the facts of a case, made after hearing argument. See “Decision” and “Question of Law.”
Fornication — Sex between two unmarried people. No longer a criminal offence, thankfully. See “Adultery.”
Forum — In law, a particular court or level of court, sometimes used in reference to the court’s jurisdiction.
Foster Care — A home where a child lives other than with his or her natural or adoptive parents. Such a situation usually arises when the child welfare authorities have apprehended a child or when a child’s parents voluntarily give the child up. See “Apprehension.”
Foster Parent — An adult charged with the care of a child not his or her own natural or adoptive child, usually in the position of a guardian to the child, who receives money in exchange for caring for the child. See “Apprehension” and “Guardianship of the Person.”
Friend of the Court — See “Amicus Curiae.”
Frivolous and Vexatious — In law, a phrase describing actions, claims or applications clearly unsupported by the evidence or by the law. Such actions are considered to be a nuisance to the respondent and a waste of the court’s time. See “Action.”
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. In family law, the motivation for an application for anullment based on non-consumation of the marriage. A contract which cannot be completed or fulfilled is said to be “frustrated.”
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Gainful Employment — Steady work for pay. In family law, a dependant party 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. See “Dependant” and 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. See “Donee,” “Donor” and “Family Assets.”
Good Faith — Acting in an honest, truthful, open and fair manner, without the intent to deceive or defraud. Also known by the Latin phrase bona fide. See “Bad Faith.”
Guardian — A person charged with the legal care of someone under a legal disability. In family law, a guardian has the right to give instructions to and receive information from the people involved in the care a child, such as doctors and teachers. Guardians also have an 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. See “Disability.”
Guardian ad Litem — A person conducting a legal action on behalf of someone under a legal disability, as if they were that person. Also called a “Litigation Guardian.” See “Disability.”
Guardianship of the Estate — In family law, being charged with the legal care of a child’s assets, usually with the power to use and dispose of those assets for the benefit of the child. See “Guardian.”
Guardianship of the Person — In family law, being charged with the legal care of a child’s person, with the power to make decisions about such things as the child’s schooling, religious instruction and medical care. See “Guardian.”
Guidelines — See “Child Support Guidelines” or “Spousal Support Advisory Guidelines.”
H
Hague Conventions — International agreements between different nations. While there are a number of these agreements, the most important in family law is the Hague Convention on the Civil Aspects of International Child Abduction, which deals with the return of children from foreign countries to which they have been wrongly taken by a parent. The convention is only binding between signatory nations.
Hardship — See “Undue Hardship.”
Hearing — In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See “Decision” and “Evidence.”
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” are both hearsay. Hearsay evidence is not admissible, as a witness can only properly give evidence of those facts of which he or she has direct knowledge. There are a number of exceptions to the general rule against hearsay, the most important of which allows certain, limited kinds of hearsay evidence in interim applications, so long as the source of the hearsay information is identified. See “Affidavit,” Applications,” “Evidence” and “Witness.”
Heirs — In estate law, the people intended or expected to receive property or other benefits under a will; a person’s direct lineal descendants. See “Executor” and “Will.”
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Indemnify — To make good a loss or harm suffered by another.
Indigent — Being flat broke. Persons with limited or no income may apply to the Supreme Court and Court of Appeal for “indigent status,” which will exempt them from paying the usual court fees for all or a part of their litigation. See “Action.”
Infant — A person not yet of the age of majority; a minor; a child. See “Age of Majority,” “Child” and “Disability.”
Infants Act — A provincial law that governs the legal capacity of minors and contracts involving minors.
Inheritance — Real property or personal property received as a result of the provisions of a will or the Estate Administration Act. Inheritances do not usually qualify as family assets subject to division between spouses. See “Family Assets,” “Real Property” and “Will.”
Injunction — An order that someone not do or cease doing a thing; a restraining order. In family law, injunctions are often sought, for example, to stop someone from moving with the children, disposing of assets or harassing someone else. See “Application” and “Ex Parte.”
In Loco Parentis — A Latin phrase meaning “in the place of a parent.” Acting as a parent in the place of the child’s natural parent or intending to stand in the place of that parent. A person found to be in loco parentis to a child may be responsible to pay child support for that child and may have certain rights with respect to the health and welfare of the child. See “Natural Parent” and “Step-Parent.”
In Personam — A Latin phrase meaning “against the person.” A right against a person as opposed to against a thing.
In Rem — A Latin phrase meaning “against the thing.” Refers to a right against objects or property rather than against a person.
Inspection of Documents — The right of a party to look at and copy documents held by the other party which relate to issues in the action; part of the discovery and production process. See “Discovery, Disclosure and Production.”
Instructions — In law, the directions given by a client to his or her lawyer about the conduct of his or her case.
Instrument — In law, a legal document which sets out certain rights and obligations, or records certain facts or entitlements to certain benefits and obligations. See “Family Law Agreements.”
Inter Alia — A Latin phrase meaning “among other things.”
Interim Application — An application made after the commencement of a legal action but before its conclusion, usually for temporary relief pending the final resolution of the matter at trial or by settlement without trial. In family law, interim applications are useful to establish certain ground rules between the parties, and determine issues like child custody, child and spousal support on a quick and temporary basis. Also called an “interlocutory application.” See “Application” and “Interim Order.”
Interim Order — Any order made prior to the final resolution of a legal action by trial or by settlement before trial; a temporary, rather than permanent or final order. See “Application” and “Interim Application.”
Interlocutory — Literally, “between speakings;” refers to interim applications brought after the commencement of a legal action but before its conclusion. See “Interim Application” and “Interim Order.”
Interrogatories — Written questions are given by one party to the other which must be answered on affirmation or oath or in affidavit form; part of the discovery process. See also “Discovery, Disclosure and Production.”
Intestate — Dying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the Estate Administration Act. See also “Estate,” “Inheritance” and “Will.”
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. See “Motion,” “Pleadings” and “Relief.”
In Trust — A phrase describing property held by one person for the benefit of another person who is ultimately entitled 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.
In Utero — A Latin phrase meaning “in the womb.” Used in reference to fetuses.
J
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. See “Custody.”
Joint Guardianship — A situation in which both parents together have guardianship of their children. Should one parent die in such circumstances, the other parent becomes the sole guardian of the children. See “Guardianship.”
Joint Tenancy — A form of ownership where two or more people co-own a thing. Each joint tenant’s interest in the property is not distinct, that is, it cannot be separated out from the other tenants’ interests. When one joint tenant dies, the other tenants continue to own the whole of the property between them as if the dead person’s interest had simply evaporated. See also “Tenancy in Common.”
Judge — A person appointed by either the federal or provincial government with the authority to hear and decide legal actions in an impartial manner, independent of influence by the government or agents of the government, whose decisions are binding upon the parties to an action. See “Constitution,” “Decision,” “Jurisdiction” and “Order.”
Judgment — See “Decision” and “Judgment, Final.”
Judgment, Final — A decision which completely and finally determines some or all of the issues in a legal action, following which there is no other recourse open to a dissatisfied party except an appeal. See “Decision.”
Jurisdiction — This word has a number of meanings: 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; 5) the geographic location of a court; and, 6) the geographic limits of a court’s authority. See “Constitution.”
Justice of the Peace — A court official appointed by the provincial government with limited decision-making authority and jurisdiction, also called a JP. See “Judge” and “Jurisdiction.”
K
L
Land — See “Real Property.”
Land (Spouse Protection) Act — A provincial law allows married spouses to file an entry on the title of the family home preventing the property from being transferred without their consent.
Land Title Act — A provincial law that governs the ownership and transfer of land, including the registration of Certificates of Pending Litigation.
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 be registered against a property. See “Encumbrance” and “Real Property.”
Last Will and Testament — See “Will.”
Law — “It is not, what a lawyer tells me I may do; but what humanity, reason and justice tell me I ought to do.” Edmund Burke
Lawful — Conduct which is permitted both by legislation and by the common law; conduct not prohibited by law. See “Unlawful.”
Lawsuit — See “Action.”
Lawyer — See “Barrister and Solicitor.”
Lawyer’s Fees — The fees a lawyer charges his or her client, usually pursuant to the lawyer’s 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 courier costs, court filing fees or photocopying. Under the Legal Profession Act a lawyer’s fees may be challenged at a taxation hearing. See “Account” and “Certificate of Fees.”
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. See “Action,” “Barrister and Solicitor” 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.”
Lease — An agreement such that the owner of a piece of property (a car or an apartment, for example) gives up the right to occupy and use that property in exchange for, usually, money. A lessor is the person who retains ownership of the property. A lessee is the person who obtains the right of possession in exchange for payments to the lessor.
Legal Burden — See “Burden of Proof.”
Legal Description — In real property law, the full formal identification of a particular piece of property by its lot number, district lot number, plan number and land district, rather than by its street address. See “Land Title and Survey Authority,” “PID” and “Real Property.”
Legal Duty — An obligation at law to do or not do a thing, whether by legislation, the common law or an order of the court. For example, the Criminal Code imposes on parents a legal duty to provide the necessities of life to their children until they turn 16. See “Duty.”
Legislate — To create and revise written laws governing things, people and places; a right of the provincial and federal governments to propose, enact and enforce laws derived from the Constitution. See “Act” and “Constitution.”
Legislation — An act, a statute; a law passed by a government. See “Act.”
Litigant — A direct party to a legal action, such as an Appellant, Applicant, Claimant or Respondent. See “Action.”
LLB — A Bachelor of Laws degree, a prerequisite for the practice of law in British Columbia. “LLM” stands for a Master of Laws degree and “LLD” for a Doctor of Laws.
M
Maintenance — In family law, usually refers to payments made by one party to the other to defray that person’s daily living expenses or the living expenses of the a child; also known as palimony, alimony or support. See “Child Support” and “Spousal Support.”
Majority, Age of — See “Age of Majority.”
Male Fides — A Latin phrase meaning “in bad faith.” See “Bad Faith.”
Malfeasance — Doing an act which is wrongful or unlawful by operation of law. See “Unlawful.”
Marriage — A legal and emotional relationship between two people, solemnized by a marriage commissioner or licenced religious official, which gives rise to certain mutual rights, benefits and obligations. See also “Conjugal Rights,” “Consortium” and “Validity of Marriage.”
Marriage Act — A provincial law that governs the ability to marry and the formalities of the marriage ceremony.
Marriage Agreement — See “Family Law Agreements.”
Marriage-Like Relationship — In family law, a quality of an opposite- or same-sex couple’s relationship connoting their committment to each other, their self-identification as a couple and other people’s perception of them as a couple; a legal requirement for a couple to be considered common-law spouses. See “Cohabitation,” “Marriage” and “Spouse.”
Marriage (Prohibited Degrees) Act — A federal law which describes the degrees of relatedness within which persons cannot marry.
Master — A provincially-appointed judicial official with limited authority and jurisdiction to deal with certain matters, including the hearing of interim applications, the taxation of lawyers’ bills and the settling of Bills of Cost. See “Interim Application,” “Judge” and “Jurisdiction.”
Material — In law, relevant, important. A material fact is a fact relevant to a claim. See “Claim” and “Fact.”
Matrimonial Home — In family law, the dwelling occupied by a family as their primary residence. As with all family assets, each spouse has an entitlement at law to a share of the matrimonial home, regardless of whose name appears on the title. See “Family Assets” and “Real Property.”
Matrimonial Property — See “Family Assets.”
Memorandum of Understanding — A document setting out the bare bones of an agreement or settlement reached between two or more people, often used as a guide to the terms of a final agreement or settlement. See “Family Law Agreements.”
Minor — See “Disability” and “Infant.”
Minutes of Settlement — A document setting out the bare bones of an agreement or settlement reached between two or more litigants, produced after negotiations and signed by the parties and their lawyers. Minutes of Settlement are normally used as the foundation of a final order, and are often attached to that order as a schedule. See “Family Law Agreements,” “Litigant” and “Orders.”
Miscarriage of Justice — A term referring to a demonstrable and traumatic failure of the justice system in a particular case.
Misrepresentation — Acts or words tending to give a misleading or false impression as to the true state of affairs. See “Bad Faith.”
Mistake — In contract law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error not intentionally made in bad faith; an unintentional misunderstanding as to the nature of a term agreed to in a contract. See “Bad Faith” and “Good Faith.”
Mortgage — The conditional transfer of the title to a piece of property to someone else in return for loaned money, while retaining possession of the property. 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 payments on the loan, the mortgagor, fails to make those payments. See “Encumbrance” and “Real Property.”
Motion — In law, an application to the court for an order, usually brought after the commencement of a legal action but before its conclusion following trial or by settlement before trial. See “Action,” “Application,” “Interim Application” and “Order.”
N
Natural Parent — A biological parent of a child, as opposed to adoptive parents and step-parents.
Negligence — Failing to do something which a reasonable person would do, or doing something which a reasonable person would not do, which results in harm to someone else.
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 to the extent tolerable by each party. See “Alternative Dispute Resolution” and “Family Law Agreements.”
Net Income — The remainder of a person’s annual income after the deduction of expenses, which may include CPP, EI and income taxes, or business and operating expenses.
Nil — A short form of the Latin word nihil meaning “nothing;” usually used to indicate a zero value. See “Null and Void.”
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 execute or certify documents. All lawyers are notaries public in addition to being barristers and solicitors. See “Barrister and Solicitor.”
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. See “Appeal” and “Decision.”
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 “Application,” “Grounds,” “Relief” and “Interlocutory Application.”
Notice of Family Claim — A legal document in which the Claimant in a legal action sets out his or her claim against the Respondent and the grounds for that claim. See “Action,” “Claim,” “Claimant,” “Pleadings” and “Relief.”
Notice of Hearing — A legal document required by the Supreme Court Family Rules which fixes the date for the hearing of a Petition. See “Hearing” and “Petition.”
Notice of Motion — A legal document required by the Provincial Court Rules to bring an interim application setting out the relief claimed by a party making an interim application. See “Application,” “Grounds,” “Relief” and “Interlocutory Application.”
Null and Void — Invalid; a nullity; of no legal force and effect. Curiously, null and void mean the same thing, which is partly explained by the fact that solicitors used to be paid by the word, just like Charles Dickens.
O
Oath — An affirmation of the truth of a statement by one’s faith in a god. Someone making an affidavit gives his or her evidence in that affidavit under oath; a witness giving oral evidence gives his or her evidence in court under oath. See “Affirmation” and “Perjury.”
Obligation — A duty at law, whether contractual, moral or legal in origin, to do or not do something. See “Duty.”
Obstruction of Justice — Doing a thing or not doing a thing with the intention or effect of hindering the administration of justice. See “Contempt of Court.”
Offence Act — A provincial law that sets out the consequences for committing an offence under provincial law, and the process by which a complaint is made and heard. It is an offence under the Family Relations Act, for example, to withhold a parent’s access to a child when there is a court order giving that person access to the child.
Offer — In contact law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract or settlement proposal. See “Offer to Settle.”
Offer to Settle — A proposal made by one party to the other, prior to the trial of an action, setting out the terms on which the party is prepared to settle. Offers to settle can have important consequences, particularly with respect to costs, if the offer is close to what the judge decides following trial. See “Costs.”
Officer of the Court — Any official of the court, including court clerks, lawyers and judges.
Onus — See “Burden of Proof.”
Omission — In law, a failure to do something, whether intentional or unintentional.
Opinion — In law, a lawyer’s advice to his or her client; a lawyer’s analysis of a legal problem. Also, the views of an expert as to a matter at issue in an action. See “Expert Evidence.”
Order — A mandatory direction of the court, binding upon the parties to a legal action. An “interim order” is a temporary order, the product of an interim application following the hearing of that application. A “final order” is a permanent order, the product of either the trial of the action or the agreed settlement of the parties before trial, following which the only recourse open to a dissatisfied party is to appeal the decision. Orders made by a judge that both parties agree the judge should make are called “consent orders.” See “Appeal” and “Decision.”
Ordinary Service — Sending legal documents to a party at that party’s “address for service,” usually by mail, fax or email. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Other documents may be served by ordinary service. Which documents must be served by personal service and which may be served by ordinary service is set out in the Supreme Court Family Rules. See also “Address for Service” and “Personal Service.”
Ownership — A legal right to the title of a thing. See “Possession” and “Real Property.”
P
Paramountcy, Doctrine of — The rule that federal laws on a subject alse covered by provincial laws is superior to and takes precedence over the provincial laws. See “Act” and “Constitution.”
Parens Patriae — A Latin phrase meaning “parent of the country.” Refers to the court’s inherent jurisdiction to deal with issues concerning persons under a legal disability, such as children. See “Children,” “Disability” and “Jurisdiction.”
Parent — In family law, the natural or adoptive father or mother of a child; may also include step-parents depending on the circumstances and the legislation applicable to those circumstances.
Parol Evidence — Oral evidence, 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.”
Party — In law, a person named as a Claimant, Respondent or third party to an action; someone either asserting a claim in a legal action or subject to a claim made in an action. See “Action.”
Paternity — The fatherhood of a child.
Paternity Suit — An action brought to prove or disprove that a particular man is the biological father of a child, usually brought to determine the man’s liability to pay child support. See “Action” and “Child Support.”
Paternity Test — A scientific test performed to determine the parentage of a child, usually performed by the genetic testing of the blood or saliva of the alleged parents and the child.
Peace Officer — A person having a duty to enforce the law as a result of his or her position or employment, including 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.
Peremptory — Something which is mandatory or absolute. A peremptory hearing date, for example, is a date on which a hearing will absolutely proceed without any further adjournment or delay.
Perfected — In contract law, finished, legally complete and enforceable, executed.
Performance — In contract law, the fulfilment of an obligation or duty arising from a contract.
Perjury — Intentionally lying to the court while giving evidence under oath; also applies to lying in a sworn document, such as an affidavit. This is a criminal offence.
Personal Property — Chattels, goods; property other than real property. See “Chattel” and “Real Property.”
Personal Service — In law, the delivery of a legal document to a party in a legal action in a manner which complies with the Supreme Court Family Rules, usually by physically handing the document to the party and verifying his or her identity. Personal service is usually required for the proper delivery of pleadings which start an action. The purpose of service is to ensure that the party is given proper notice of the action and the opportunity to defend that action. See also “Delivery,” “Pleadings,” “Service, Affidavit of” and “Service, Substituted.”
Petition — A court document used to commence certain types of legal actions. The person bringing such an action is the “Petitioner” and the person against whom the action is brought is the “Petition Respondent.” An action can only be started by a Petition in certain circumstances, most often actions are started with a Notice of Family Claim. See “Action,” “Claimant” and “Notice of Family Claim.”
PID — The short form of the phrase “Parcel Identifier Description,” an unique nine-digit number assigned by the Land Title and Survey Authority assigned to each parcel of real property in the province. See “Land Title and Survey Authority” and “Real Property.”
Pleading — 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. See “Counterclaim,” “Notice of Family Claim” and “Response to Family Claim.”
Polygamy — Being married to more than one person at the same time. A criminal offence elsewhere in Canada than Bountiful, British Columbia. Polygamous marriages subsequent to the first are void ab initio. See “Ab Initio,” “Marriage” and “Validity of Marriage.”
Possession — In law, the right to have the control and use of a thing. One can have a right to the possession of a thing without owning it, as in the case of a car lease, or ownership without possession, as in the case of a landlord and an apartment suite. See “Ownership” and “Real Property.”
Preamble — An introductory statement in an act or agreement setting out the purpose of the statute or agreement, but not technically forming a part of the statute or agreement, in the sense that the preamble is not enforceable and does not give rise to a legal right or entitlement. Preambles are normally used to provide a guide the to interpretation of the rest of the document. See “Act” and “Family Agreements.”
Precedent — This word has a number of meanings: 1) historical decisions of the courts; 2) the principle that such decisions are binding on subsequent judges hearing cases of a similar nature or of similar circumstances; and, 3) templates or sample documents used to draft new documents. See “Common Law.”
Premises — In real property law, a piece of property and a building situated on it, usually including the area of the property surrounding a building on that property. In law generally, a premise is an assumption which founds a logical argument. See “Argument” and “Real Property.”
Prima Facie — A Latin phrase meaning at “first face.” Refers to a fact which is obvious at first glance.
Primary Residence — In family law, the home at which a child lives most often. This term is particuarly important in situations of joint guardianship, as the parent with “primary residence” is often given decision-making authority when the parents cannot agree on a parenting issue. See “Custody,” “Guardianship” and “Joint Guardianship.”
Privilege — In law, the duty a lawyer has to keep his or her client’s information confidential, including communications between the lawyer and client and advice given to the client. A lawyer cannot reveal privileged communications even to the court, except in certain usual circumstances. See “Barrister and Solicitor” and “Duty.”
Probate — The process of checking the validity of a will, distributing a dead person’s estate and settling his or her debts according to the instructions set out in that person’s will. See “Estate” and “Will.”
Pro Bono — A Latin phrase meaning “for the good of,” short for “pro bono publico,” meaning “for the public good.” Usually refers to those situations in which a lawyer voluntarily performs a legal service without charge.
Proceeding — In law, the whole of the conduct of a legal action, from beginning to end, and all steps in between; may also be used to refer to a specific hearing or trial. See “Action.”
Proof — Evidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See “Evidence” and “Premises.”
Property — Something which can be owned. See “Chattels” and “Real Property.”
Provincial Courts, the — Courts created by the provincial government, including Small Claims Court, Youth Court and Family Court. They are the lowest level of court in British Columbia and do not have an unlimited jursidiction; they are usually restricted in the sorts of matters they can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family assets. See “Jurisdiction.”
Provincial (Family) Court — A Provincial Court with the authority to deal with certain family law issues under the Family Relations Act and lacking the jurisdiction to make orders dealing with assets, certain kinds of restraining orders, and orders for divorce. This court is somewhat less formal than the Supreme Court, its rules are written in plain language, and there are no filing fees. See also “Court of Appeal,” “Jurisdiction” and “Supreme Court.”
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QC — The abbreviation of “Queen’s Counsel.” A QC is an honour normally granted to lawyers of particularly excellence, although they may be granted for other reasons as well, such as service to the legal community or to the public.
Quantum Meruit — A Latin phrase meaning “the amount deserved.” Refers to the payment for a service according to the amount deserved for the performance of the service, often calculated by an hourly wage.
Quantum Valebant — A Latin phrase meaning “the amount worth.” Refers to the payment for a service according to the value or benefit of the service received.
Quash — To set aside or vacate an order or judgment. See “Action” and “Order.”
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.” See “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 an 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.” See “Finding of Law.”
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Real Estate — See “Real Property.”
Real Property — A parcel of land and the buildings on that land. Real property is different from chattels or personal property because it cannot be moved. A landlord gives someone the right to the possess a property in exchange for rent while keeping the ownership of the property. A person who has mortgaged their property gives the bank the right of ownership while retaining the right to possess the property. See also “Chattel,” “Ownership” and “Possession.”
Reapportion — In family law, the division of family assets unequally, so as to favour one spouse over the other. See “Apportion” and “Family Assets.”
Rebut — In law, to reply to an argument, a statement of fact or a legal presumption by presenting argument or evidence to the contrary, or evidence which tends to disturb a presumption.
Reconciliation — In family law, the resumption of cohabitation between married spouses with the intention of salvaging their marriage and making another go of it. See “Separation.”
Registrar — An officer of the court with the power to make certain decisions, including the settlement of a lawyer’s bill and a party’s costs of a legal action; also, an officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings. See “Jursidiction” and “Pleadings.”
Registry, Court — A central office, located in each judicial district, at which the court files for each legal action brought in that district are maintained, and at which legal documents can be filed, searched and reviewed.
Registry, Land Title — See “Land Title and Survey Authority.”
Regulations — A kind of lesser legislation consisting of supplemental rules to a particular act. Regulations are created and amended by the government, not the legislature, pursuant to the provisions of an act. As such, the legislature has no say as to what sort of regulations are imposed or what the effect of those regulations will be. See “Act.”
Rehearing — A reconsideration or retrial of an action or application, sometimes based on the evidence which was presented at the first hearing or trial and/or fresh evidence. See “Action,” “Application” and “De Novo.”
Release — In 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. Releases are usually signed following the settlement of a claim or potential claim. See “Action” and “Claim.”
Relief — In law, an order sought by one party to a legal action as set out in his or her pleadings. Where more than one remedy or order is sought, each remedy 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 an action. See “Action,” “Claim” and “Defence.”
Representation — In contact law, a promise made by someone about a certain state of affairs, like “the plumbing was replaced last year.” See “Misrepresentation.”
Rescind — To terminate or revoke a contract or agreement. See “Contract” and “Family Agreements.”
Residence — The geographic place where a person permanently lives. This is different from a person’s “domicile” in that a person’s residence is more concrete and less changeable in nature. A person’s residence can also have an impact on a court’s authority to hear and decide a legal action. See “Domicile” and “Jurisdiction.”
Res Judicata — A Latin phrase meaning “a thing decided.” A final order, unlike an interim order, renders an issue moot and legally concluded unless it is appealed. See “Order.”
Response to Family Claim — A legal document in which the Respondent in a legal action sets out his or her reply to the Claimant’s claim and the grounds for his or her reply. See “Action,” “Claim,” “Pleadings,” “Relief” and “Respondent.”
Respondent — The person against whom a claim has been brought by Notice of Family Claim. See “Application” and “Notice of Family Claim.”
Restraining Order — An order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of assets, and stopping someone from harassing someone else. See “Ex Parte” and “Order.”
Resulting Trust — In family law, the finding by a court that one party holds all or a part of an asset in trust for another 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 — This term has several meanings: 1) the act of hiring of lawyer; 2) the money paid by a lawyer to hire his or her services; and, 3) the terms and extent of a lawyer’s work on behalf of a client.
Reversal — In law, usually refers to a decision of an appeal court overturning the prior decision of a lower court on a particular issue. The lower court’s decision is then said to have been “reversed on appeal.” See “Appeal” and “Common Law.”
Review — In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. A separation agreement or an order may state that a particular term is reviewable at a certain date, and on that date the term may be cancelled, varied or left alone. See “De Novo,” “Family Law Agreements” and “Order.”
Right of Action — See “Cause of Action.”
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.
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Sale — An agreement to transfer the owenership of an asset from one person to another in exchange for the reciprocal transfer of something else, usually money. See “Agreement” and “Real Property.”
Same-Sex Couple — An unmarried, common-law or married couple composed of two persons of the same gender. Same-sex couples have, at law, an identical standing with straight couples.
Senility — See “Disability” and “Non Compos Mentis.”
Separation — In family law, the decision of one or both parties to terminate a married or common-law relationship; spouses living apart from each other on the basis that their relationship has ended; the act of one person leaving the matrimonial home to live somewhere else. There is no such thing as a “legal separation.” In general, one separates by simply moving out, however there are circumstances where spouses can be separated but still live under the same roof. See “Divorce, Grounds of” and “Matrimonial Home.”
Separation Agreement — A contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship, intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is arrived at after negotiations between both parties’ lawyers and can deal with issues like custody, guardianship, access, support and the division of assets. See “Family Law Agreements.”
Service, Affidavit of — An affidavit produced by someone who has served a party with a legal document stating that the party was served. This may be essential to prove personal service, particularly if the serving party intends to seek a default judgment, as is usually the case in a desk order divorce action. See “Default Judgment,” “Ordinary Service” and “Personal Service.”
Service, Substituted — Personal service in a way other than prescribed by the Supreme Court Family Rules as may be authorized by an order of the court. If a Respondent cannot be served (if he or she is hiding, refusing service or cannot be located, for example), the court may permit a Claimant to serve the other party “substitutionally,” by means including an ad in the legal notices section of a newspaper’s classified ads or posting the document in the court registry. See also “Personal Service.”
Service ex Juris — Service of legal documents on someone living outside of British Columbia. See “Personal Service.”
Service of Process — See “Personal Service.”
Settlement — An agreed resolution of one or more matters at issue in an action or potential action, made by and between the parties as opposed to resolution of the matter by the court following a trial or hearing. See “Action” and “Offer.”
Severally — In law, individually and apart from. People who have been given advice about something “severally,” for example, have each been given the advice individually and out of each other’s presence.
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, normally in the expectation that it will never be set for hearing. See “Adjournment” and “Application.”
Small Claims Court — See “Provincial Courts.”
Solicitor — See “Barrister and Solicitor.”
Spousal Support Advisory Guidelines — An academic paper released by the federal Department of Justice in January 2005 that describes a variety of mathematic formulas that can be applied to determine how much spousal support should be paid and how long spousal support should be paid for, once a spouse has been found to be entitled to receive support. The Advisory Guidelines are not a law.
Spouse — According to the Divorce Act, a spouse is a party to a marriage involving two people of different genders. Under the Family Relations Act the term also includes same-sex couples and unmarried couples who have lived together in a marriage-like relationship for a period of at least two years. As each act deals with different issues, it is important to be aware of how each act defines this term. See “Common Law,” “Marriage” and “Marriage-Loke Relationship.”
Stare Decisis — A Latin phrase meaning “standing 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.”
Status Quo — A Latin phrase meaning “the state that was;” refers to whatever circumstances or conditions previously existed, or which presently exist and have existed for some time.
Statute — See “Act.”
Statutory Declaration — A written statement made on affirmation or oath pursuant to the requirements of a particular piece of legislation. See “Act,” “Affidavit,” “Affirm” and “Oath.”
Stepparent — The spouse of a person who has children from a previous relationship; a stepparent may qualify as a “parent” for the purposes of issues relating to child support and the care and control of a child under both the Divorce Act and the Family Relations Act. See “Parent” and “Spouse.”
Subpoena — A legal document issued either by a court or by a party pursuant to the Supreme Court Family Rules which compels someone 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 — In law, a law suit, a legal action, a court proceeding, a case; a Claimant’s claim against a Respondent. In fashion, something Moore’s doesn’t make particularly well. See “Action.”
Supreme Court — Normally referred to as the “Supreme Court of British Columbia,” this court hears most actions in this province. Unlike the lower provincial courts, the Supreme Court has no limits on the sorts of applications it can hear or on the sorts of orders it can make. In comparison to the Provincial (Family) Court, the Supreme Court is a lot more expensive, a lot more formal and a lot more complex. On the other hand, it is the only court with the jurisdiction to grant orders for divorce or orders dealing with family assets. See “Court of Appeal,” “Jursidiction” and “Provincial (Family) Court.”
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. For family law matters, and most other litigation, you must make a special application to this court if you wish it to hear your appeal, and the court may or may not decide to hear your case. See “Court of Appeal.”
T
Tenancy in Common — A kind of ownership of a property such that two or more owners have distinct shares of their ownership of the common property. A tenant in common may chose to sell or otherwise deal with his or her share in that property independently from other owners. In family law, where spouses have a tenancy in common, they are each considered to own an exact half of that property, separate from the other person’s half. See “Joint Tenancy.”
Tenancy, Joint — See “Joint Tenancy.”
Testator — In estate law, refers to a person who has made a will used in reference to that will. The feminine form of this word is “testatrix.” See “Will.”
Testimony — A statement made by a witness in court, or made in an affidavit, as evidence given under oath or the witness’ affirmation as to the truth of the statement. See “Affirm,” “Evidence,” “Oath” and “Witness.”
Third Party — A person named in an action or joined to an action who is neither the Claimant nor the Respondent. A third party may be joined to an action where the Respondent believes that the person has some responsibility for the cause of action. See “Action,” “Cause of Action” and “Party.”
Time, Calculation of — The Supreme Court Family Rules and the provincial Interpretation Act provide rules governing the calculation of time. See Rule 21-2 and Interpretation Act, s. 29. See also “Calendar Days” and “Clear Days.”
Title — In law, having the ownership of a thing; a document evincing ownership of a thing. See “Ownership.”
Title, Clear — See “Clear Title.”
Transfer — In law, the act of an owner of a thing transferring the title of that thing to another person. See “Ownership,” “Sale” and “Title.”
Trial — The testing of a Claimant’s claim and/or a Respondent’s counterclaim against their respective defences at a formal hearing before a judge with the jurisdiction to hear the matter and make a final, binding determination of the parties’ claims against one another. See “Action” and “Jurisdiction.”
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, known as the “beneficiary.” See “Constructive Trust,” “Ownership” and “Title.”
Trust, Constructive — See “Constructive Trust.”
Trust, Resulting — See “Resulting Trust.”
Trustee — One who holds a thing in trust for another. See “Trust.”
U
Undue Hardship — In reference to child support, a situation in which the paying of the amount of child support specified by the Child Support Guidelines would cause financial difficulty and significant unfairness for either the payor or the recipient; a greater degree of hardship than simple hardship is required, it must also be undue before the court will deviate from the Guidelines. See also “Child Support” and “Child Support Guidelines.”
Unjust Enrichment — Money or benefits unfairly gained by one person at a corresponding expense or loss to another. See “Constructive Trust.”
Unlawful — Acts or omissions made contrary to legislation or the common law. See “Lawful.”
V
Vacate — In law, a decision of a court to set aside or quash a 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.”
Validity of Marriage — For a marriage to be valid, the spouses must be: unmarried at the time of the marriage, not within the prohibited degrees of consanguinity, and capable of understanding the meaning of marriage. See “Age of Majority,” “Bigamy,” “Consanguinity” and “Disability.”
Vendor — A seller of a thing. See “Sale.”
Verdict — See “Decision.”
W
Waive — In law, to give up a right or entitlement; or, 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.
Will — A legal document in which a person sets out how he wishes his or her property to be disposed of after death. There are certain legal requirements which must be met for a will to be valid. In the absence of a valid will, a person’s property will generally be dealt with according to the provisions of the Estate Administration Act. See “Estate,” “Executor,” “Heir,” “Intestate” and “Testator.”
Without Prejudice — A phrase meaning that the content of a statement or a proceeding will have no future legal impact on either party and cannot subsequently be used in a legal proceeding involving the parties. When these words appear on a letter, it is meant to indicate that the content of the letter may not be used in court or referred to in legal proceedings, except under certain circumstances.
Witness — A person giving oral evidence to a court about things that he or she has personal knowledge of, on oath or affirmation as to the truth of the evidence given. See “Affirmation,” “Evidence” and “Oath.”
Word of Art — A word or phrase which has a particular meaning in law that is usually distinct from the word’s or phrase’s common English meaning, like the phrase “word of art.” Also referred to as “term of art.”
Wrongful Act — See “Unlawful.”
X
Y
Youth — In law, in British Columbia a person under the age of 19. See “Age of Majority,” “Disability” and “Infant.”
Youth Court — See “Provincial Courts.”
Z
— End of Definitions —
For larger, more precise definitions you might want to have a look at Black’s Law Dictionary, an American reference book published by Thomson West, or Barron’s Canadian Law Dictionary. Queen’s Printer also has helpful glossaries.
