Glossary of Legal Terms

Glossary of legal terms you might need when it comes to separation and divorce.

We have provided this list of common divorce and legal terms for your convenience. If you don't see the term you're looking for, please let us know.

Advice Counsel

Advice counsel are either Legal Aid Ontario staff lawyers or private lawyers. The former is part of family courts and gives basic information about family law. Advice counsel, for instance, can explain how to respond to or begin a court application, the court process, and even explain legal terms.

For low-income families, advice counsel may be able to provide legal advice. That advice can cover child support, access and child custody, spousal support, divorce, division of property, and most matters regarding family law.

Alternative Dispute Resolution (ADR)

Divorce court is known as the traditional means for divorce. An alternative dispute resolution (ADR) is a different method meant to resolve those issues and disputes without necessitating court. The most common ADR processes include mediation, arbitration, and collaborative family law.

Arbitration

Arbitration is one of the aforementioned alternative dispute processes. It is where each spouse meets with a neutral person known as an arbitrator. The goal is to resolve issues without the need for divorce court.

The arbitrator is generally a lawyer. Typically, arbitrators that are not lawyers have some kind of special family law training. Should each party be unable to reach an agreement, then the arbitrator would make a ruling to decide the issue. This decision is known as a family arbitration award.

Assets

Assets generally entail money but can be anything of value that can be sold or exchanged for money. These can include jewelry, cars, property, and investments like a pension plan or an RRSP. Division of assets tends to be one of the most contentious parts of a divorce proceeding.

Balance of Probabilities

The balance of probabilities is a legal test of proof or standard generally required in family law matters. Essentially, the judge uses the balance of probabilities to measure who they think is more believable between the two spouses.

Case Conference

A case conference is a meeting between both spouses, lawyers should they be involved, and a judge. The purpose of the conference includes:

  • Determining what issues need solving in the case
  • Discussing the ways to solve those issues without the need to go to trial instead
  • Determining what information that both spouses need to share

Case conferences are typically used when both sides are at an impasse and failing to make progress with their mediation.

Child Support

Child support is any amount of money that one parent is obligated to pay to the other to support the child/children financially. That money generally goes to the parent with whom the child lives the majority of the time.

The parent that pays the child support is known as the payor parent. The total amount of child support that the payor parent owes typically gets dictated by the Child Support Guidelines.

Child Support Guidelines

The Child Support Guidelines are a set of rules used to determine the amount of financial support the payor parent must pay. The Guidelines also include the amount of monthly child support based on the income of the payor parent. The Guidelines also determine that number based on the number of children the payor parent has to support.

There is a table that covers expenses like food, clothing, and basic school supplies. The Guidelines also include extraordinary or special expenses that need to be paid in addition to the table amounts mentioned above.

Children’s Aid Society

A government agency, the Children’s Aid Society (CAS), has a legal duty to ensure that children are effectively protected from harm. In some provinces, like Ontario, these kinds of agencies are known as Child and Family Services.

Closing Statement

The closing statement, either in a court case or arbitration, is a summary of the evidence each party gives. These are essentially the final plea to the judge as to why one side’s case is more effective than the other.

The closing statement can only refer to evidence that either spouse or another witness has talked about during the trial. Those statements cannot, under any circumstances, contain new information of any kind.

Collaborative Family Law

Collaborative family law acts as an alternative dispute resolution process. This process involves both parties trying to solve their issues without going to court. Typically, collaborative family lawyers will have some kind of special training. Moreover, the agreement not to go to court goes into writing.

Each of the partners will have their own collaborative family lawyer. The lawyers work with each of the partners to help them agree on the issues. Typically, this can take several meetings before results happen.

Both parties may not agree, deciding that court is necessary. The collaborative family lawyers would be restricted from acting as lawyers in the court case.

Common-law Relationship

A common-law relationship in Canada is when both parties, either of the opposite or same sex, live together in a marriage-like relationship. The big difference is that they are not actually married. Common-law relationships are also called cohabiting.

Each province has legislation dictating what constitutes a common-law relationship.

Consent Order

A consent order is a specific type of court order in which the parties agree on the terms of the order.

Contact Time

With leave of the court, a person other than a parent, or someone who stands in place of a parent, may make an application for contact between than person and a child. The court would consider, among other things, whether this contact could otherwise occur during a parent's parenting time (ex. a grandparent seeing the child during their child's parenting time).

Cost Consequences

The cost consequences in a case are where one party is responsible for paying either some or all of the other party’s legal costs. Those legal costs can include lawyer’s and court fees, among other specified items. Any other fees are eligible for inclusion as well.

It is up to the court to decide when those cost consequences are necessary. Often, a party must be generally successful in a court application to receive costs.

Court Clerk

The court clerk is the person working for the courthouse that is responsible for maintaining court files, issuing necessary documents, and even setting court dates.

Court Order

A court order is when the judge makes a decision requiring one party to either do or not do something. A court order may be temporary or final, depending on the circumstances.

Cross-Examination

During the alternative dispute resolution or divorce court process, the cross-examination is where either party or lawyer can ask the other party or their witness questions. The reason for the cross-examination is to help test how reliable and true the answers of the witness are.

Debts

Debts in a divorce proceeding are the money that a spouse owes. It could include something like a car loan, line of credit, mortgage, and so on.

Decision Making Responsibility

Decision Making is one parent’s responsibility to make important decisions regarding the care and raising of the child. This can include the right to decide things like the child’s religion, healthcare,education, and general well-being.

Decision making is not deciding which parent will house the child, nor is it about the length or frequency of visits with each parent.

There are also different kinds of arrangements to be aware of. Sole Decision Making is where one person alone has the right to make the decisions mentioned above. In the case of joint decision making, both parents have a right to make those decisions. Split decision making is when a parent may have the right to make decisions regarding specific areas (ex. healthcare, education).

Direct Examination

A direct examination is where one party or their lawyer, if present, questions their own set of witnesses. A witness would be asked to speak in support of your case or testify in the hearing. The direct examination process is also known as examination-in-chief.

Divide Property

The division of property is a process where the assets and debts of the couple are divided. Typically, property division happens when the parties are either separate or divorce.

Typically, married couples share the value of any property that they own. That means the partner who has more property will usually pay money to the partner with the lesser amount of property. The property is not divided physically.

Whether or not a common law couple must divide their property upon separating depends on each province's legislation.

Divorce

A divorce is a court order that officially puts a legal end to a marriage. In some cases, there is not a need to go to court. To get the divorce, however, one partner has to fill out the necessary court paperwork to get that divorce order.

Duty Counsel

The duty counsel are either private lawyers or staff lawyers from Legal Aid. They provide legal help immediately to people who make their court appearance that day without legal representation.

Duty counsel offers free legal advice and can even help with the negotiation and settling of issues. However, what they can’t do, is take the whole case on or legally represent that person in a trial.

Endorsement

An endorsement is the set of written directions imparted by the judge. The endorsement dictates what each party must either do or not do. Typically, the endorsement goes into the court file.

To make that endorsement into a court order, a draft order must be prepared. Either party can draft it, but both need to sign it. Both parties have to sign it if they want the order to be enforceable. An enforceable order means that the court can order either spouse to do what the order says. In some instances, the court clerk can prepare the draft order.

Ex Parte Motion

The ex parte motion is where one party brings an urgent motion without notice to the other spouse. Ex parte also goes by "emergency motion". What it means is that that party does not have to serve documents to the other party. The judge can hear the motion first and come to a decision.

The reason that service is not required may be due to a delay or immediate safety issues that could lead to something serious occurring. There are limited situations in which an ex parte motion can be brought up. For example, if one partner feels there is an immediate risk of harm to one of the children. Another instance would be if one spouse feels that the other will leave either the province or country with the children and not return.

Exclusive Possession

Exclusive possession is an order by the court that dictates that one partner can stay in or return to the home and that the other is no longer allowed on the property. With children involved, the order allows them on the property. Typically, this order is a temporary one. The court won’t decide the owner or who rented it when they decide who stays on the property.

Family Responsibility Office (FRO) / Maintenance Enforcement

The Family Responsibility Office (FRO) and Maintenance Enforcement Programs (MEP), are government agencies, responsible for enforcing spousal and child support payments. They are responsible for collecting support directly from the spouse in order to pay the support. They also keep records of the payment amounts, paying that amount to the spouse that receives the support.

Should the partner miss a payment, the agency can then take action to enforce the separation agreement or court order on those support payments. For example, the agency can take money directly from that person’s bank accounts, suspend that person’s driver’s license, and even start a court case that could put them in jail.

Each province has their own Agency:

  • Alberta: Alberta Maintenance Enforcement Program
  • BC: B.C. Family Maintenance Enforcement Program
  • Manitoba: Maintenance Enforcement Program
  • New Brunswick: Office of Support Enforcement
  • Newfoundland & Labrador: Support Enforcement Division
  • Northwest Territories: Maintenance Enforcement Program
  • Nova Scotia: Maintenance Enforcement Program
  • Nunavut: Family Support Program
  • Ontario: Family Responsibility Office
  • PEI: Maintenance Enforcement Program
  • Quebec: Support - Payment Collection Program
  • Saskatchewan: Maintenance Enforcement Program
  • Yukon, Maintenance Enforcement Program

Family Violence

Family violence generally refers to the different forms of neglect, abuse, or harm that either an adult or child might experience in those close, personal relationships. When violence happens between two partners, that is domestic violence.

File

Filing court documents means providing forms to the court and any documents necessary to the court clerk. The clerk at the courthouse then adds those documents to the file. Each court form that is filled out, as any relevant documents that the judge should see, will have to be filed with the court.

Financial Statement

A financial statement is a form filed with the court detailing both parties' expenses, income, debts, and assets. Each party has to fill out financial statements, particularly regarding a court order for:

  • Spousal support
  • Child support
  • Property Division

Independent Legal Advice

Independent legal advice (ILA) is where both spouses each consult different lawyers for individual legal advice. That advice is completely independent because each lawyer, in this case, is working for just one part. It is important to obtain independent legal advice before signing a separation agreement because:

  • The agreement is less likely to face challenges later on
  • A lawyer will be able to advise how your rights can change when signing the agreement
  • A court is more likely to order both parties to do what was agreed upon in the separation agreement

Some provinces require ILA to meet the formal requirements of a separation agreement under law.

Issue

Typically, the vast majority of court forms beginning a court process need to be issued. For example, the application form needs issuing to start the court case. The court clerk issues the order when they provide the file number and dates, signs and applies the court’s seal on the original form.

Joint Decision Making

Joint decision making is when both parents are required to come to agree on important decisions that impact the child. Those decisions include education, healthcare, and religion. A single parent cannot make decisions on these things without agreement from the other parent.

Mandatory Information Program

The Mandatory Information Program (MIP) is for partners in Ontario currently in the process of separating or divorcing. The MIP provides them with information regarding:

  • The family court process
  • Family law issues
  • How separation and divorce can impact both children and adults
  • The different ways to come to a resolution without court
  • Local programs and resources

Generally, both spouses must attend a MIP before the court case is allowed to move forward.

Married

To be married means that two people of either the same or opposite sex took part in a valid marriage ceremony with another who has the legal authority to marry them. Marriage can only end through annulment, divorce, or the death of one spouse. It is important to note that separation and divorce are different.

Matrimonial Home / Family Home

The matrimonial/family home is the property that served as the family home for partners at the time they separated. There can be more than a single matrimonial home.

If a province's legislation does not include division of property for common-law couples, a common law couple in that province cannot have a matrimonial home.

Mediation

Mediation is one form of alternative dispute resolution. During mediation, both partners meet with a neutral party, known as a mediator. Working with the mediator, they work to resolve the issues between them without going to court.

The mediator has been trained to help both parties agree without necessarily taking a side. Some social workers, lawyers and other professionals have mediation training. It is important to note that the mediator won’t necessarily decide anything, nor will they force either party to agree to anything.

Instead, they help both parties communicate effectively and help both understand the other’s position. The goal is to help both parties compromise and eventually come to an agreement.

Minutes of Settlement

The minutes of settlement is a document that both parties are required to sign describing the method in which both parties have solved the issues. The minutes of settlement can go towards obtaining a consent order.

Motion to Change / Application for Variation

The motion to change is a process in the courts when both parties want the judge to change a separation agreement or court order that has already been filed with the court. A motion to change is known as a variation.

Non-removal Order

A non-removal is a type of court order that the court makes to keep one or both parents from removing the child from a specific area. In most cases, that pertains to the province or country but can include city limits in some instances.

Offer to Settle

The offer to settle is a written document that one party sends to the other. The document entails what they are willing to agree to so as to settle either part or all of the issues at hand.

Office of the Children’s Lawyer (OCL)

The Office of the Children’s Lawyer (OCL) is a government-funded office in Ontario. They are responsible for representing children under age 18 in some cases.

That does not mean that the OCL is automatically involved in every access and custody court case. The OCL will need to agree to accept a particular case. The OCL also has lawyers and clinicians throughout Ontario. Typically social workers, OCL clinicians generally prepare access and custody reports about a child’s views, needs, and wishes. OCL lawyers then represent children in the court process.

In other provinces, lawyers for children are often appointed through legal aid upon an order from a judge.

Opening Statement

The opening statement in a case is where each party stakes their case in summary form. The opening statement is ideal for presenting:

  • Any issues that the case may be about
  • Any court orders that either party is asking for
  • Evidence that will be involved to support the claims being made

Parenting Plan

The parenting plan is an agreement between divorcing parents that dictates how each will care for the children. A parenting plan, for example, covers which parent makes decisions regarding dental care, handling emergencies, and time spent with each parent. The parenting plan can either be a totally different document or included in the court order or separation agreement.

Parenting Order

The parenting order is the court order setting out parenting time and decision making responsibilities in respect of any children. Parenting orders may also include details about communication between children and other people subject to the order, or any other matters the court considers appropriate. Either a parent, or someone standing in the place of a parent may make an application for a parenting order.

Other people (ex. grandparents), may make an application for a parenting order only with leave of the court.

Parenting Time

Parenting time is the time that a child spends with each parent. This access can be on a strict schedule, typically every other week or weekend. It can also be on a more flexible schedule, like whenever the parents agree to. In some cases, one parent may have supervised access where another party. It can be the other parent or an agreed-upon supervisor who watches the entire visit. Unless otherwise orders, during a parent's parenting time, that parent has exclusive authority to make day-to-day decisions affecting the children (ex. meals, clothing, schedules).

Parenting time can also include the right for either parent to gather information. That information can be about education, well-being, or the child’s health. It is important to note that getting information is not even remotely the same as making a major decision regarding the child.

Party or Parties

Parties are either the people or organizations directly involved in a court case, agreement, contract, or any other legal matter. A party can either be a single person or a group encompassing two people or more. It can also be an agency like the Family Responsibility Office, a corporation, etc. In family law cases, both partners are parties, but the children involved are not.

Procedural Order

The procedural order is a specific order meant to help move the case along. For instance, the order comes with a timeline included for sharing specific documents or an order that provides more time for filing documents with the court.

Process Server

The process server is the person who serves or gives documents to one of the parties involved in a particular court case. You can find process servers in your area through Canada 411 by searching “process server.”

Regular Service

To serve a document through regular means, one party has to give a copy of that specific document to either their partner or lawyer by:

  • Email
  • Mail
  • Courier
  • Document exchange
  • Fax

There are also rules about how to serve a document through regular service properly. Those rules depend on how the serving of the document. You can, for example, serve a document through email or electronic document exchange only if the other person agrees. The only exception would be a court order allowing the serving of documents in that way.

Most documents are served through regular service. There are some cases, such as the beginning of a case, where the serving of documents requires special service.

Restraining Order

pA restraining order is issued by the court and says that one person is not allowed to go near one or more people specifically. It can also restrict communication with those people. It may say:
  • One partner cannot communicate with the other or the children unless through another person or agency, or
  • One partner cannot come within 500 meters of the other or the children

Separate or Separation

To separate in Canada is when one partner (at least) decides to end the common-law relationship or marriage. Moreover, they behave in a way that illustrates that they wish to end the relationship. Just one party has to declare that they want to live “separate and apart” from the partner to legally separate. Divorce and separation are two separate things.

Separation Agreement

The separation agreement, also known as a domestic contract or marriage agreement, is a written contract between two partners after the two have separated or divorced. The document dictates how they deal with the issues between them. For instance, it can dictate how much child or spousal support one partner will pay to the other. The separation agreement can also dictate access or custody of the children. The separation agreement can also deal with a portion or all of the family law issues at hand.

Serve

To serve a document is when one party in a case gives their documents or forms to the other in such a way that is allowed under court rules. There are two methods for serving documents: regular and special service.

Settlement Conference

A settlement conference is a meeting with both spouses, any lawyers present, and a judge. The reasons for scheduling a settlement conference include:

  • Talking about potential ways to solve the ongoing issues at hand without the need for going to trial
  • If possible, getting the judge’s view on how the court may decide on the case
  • Considering any matter that could potentially help the case

Shared Parenting Time

In shared parenting time, the children live with each parent at least 40% of the time. Shared parenting time can potentially impact child support payment amounts.

Sole Decision Making

Sole decision making is a form of custody when one parent has the exclusive right to make any and all important decisions on raising. and caring for the child. That also includes the right to decide about the child’s education, health, and religion.

There is the chance that the parent with sole decision making power may have to at least discuss the issue with the other partner before coming to an important decision. However, with sole decision making, the parent with custody can make the decision even if the other parent is in disagreement.

Special or Extraordinary Expenses

Special or extraordinary expenses are a form of child support that gets paid in addition to the established table amounts of child support. Child support gets set forth through the Child Support Guidelines.

Table amounts cover expenses such as food, clothing, and basic school supplies. Special or extraordinary expenses are in place to cover things like university or daycare costs. Those expenses have to be deemed reasonable give the financial situation of the family. The expenses should be deemed necessary and as being in the child’s best interests. Both parents typically share in these expenses based on their incomes.

Special Service

Serving a document through special service means giving a copy of the document to the other person by:

  • Mail
  • Providing a copy to the spouse in person
  • Giving a copy to the other person’s lawyer directly
  • Providing a copy to an adult that lives in the same home as the other spouse, while mailing a copy of the document to the address of the partner within a single day

There are also rules regarding how to serve a specific document through special service. Those rules depend on the method of serving. For instance, you could mail the document, but the other person must mail back a form that says they have received that document.

Like those needed to start a court case, some documents have to be served through special service. Typically, most documents go through regular service.

Split Parenting Time

In split custody, parents that have either separated or divorce have:

  • More than one child together, and
  • Each of the parents has the majority of parenting time of at least one or more of the children

It is important to note that split parenting time can impact child support payments.

Spousal Support

Spousal support is any money paid by one spouse to the other following the separation or divorce. It is not, however, automatic. The partner who asks for spousal support must show that they have entitlement to said support.

With spousal support payments, the partner with the higher income is generally responsible for paying support to the other. There are also Spousal Support Advisory Guidelines available that can help lawyers and judges. It determines how long and how much support needs to be paid. There are online tools as well. They give each party a basic idea of the length and cost of spousal support.

Supervised Parenting Time

With supervised access, a separate party is there to watch as one parent visits with the children. It can be another relative – an aunt, uncle, or grandparent, for instance, or someone from a local agency such as the Children’s Aid Society. The goal is to ensure the safety of the child during these visitations.

Temporary Order

A temporary order is a type of order that lasts until two conditions are met. For one, another temporary order has to be made. The other condition is a period of time or an event. The order covers these and ends when a final order has been made.

Trial Management Conference

The trial management conference is a meeting between both parties, any lawyers, if available, and the judge. The goals of the trial management conference are to:

  • Discuss how to resolve issues without taking them to trial
  • Decide how the trial will proceed in the event that the parties cannot resolve those issues
  • Set a trial date or confirm one already set

Variation

A variation is any change made to a legal document, such as a court order. There are times where the court process will ask for a variation. The process is called a motion to change.