Family law terms defined
Access is the right of a child to spend time with the parent who does not live with him or her. It may also be referred to as parenting time. Access arrangements differ depending on the circumstances of the parents and children, such as a child's age. Courts consider a child benefits from contact with both parents, unless something might put the child at risk, such as physical abuse. A parent with access is entitled to information about the child's health, welfare and education, unless the Court orders otherwise.
• Reasonable Access means the parents will decide on an ongoing basis the access days and times that are in the children’s best interests. It provides maximum flexibility to change the arrangements when needed, but parents who often disagree about access may find it easier to agree on, and stick to, a specific schedule. It is also difficult to enforce access with this type of arrangement, since it does not require access at any specific time.
• Specified Access means that specific days and times for access are set out in an court order or written agreement. It can also include a procedure for changing the days and times. This type of arrangement works best for parents who do not get along.
• Supervised Access means that the parent who does not live with the child(ren) can only see them with another adult present. The access supervisor may be the child’s other parent, a family member or friend, or a professional, such as a social worker. Supervised access allows a child to continue to spend time with a parent when unsupervised contact presents a risk to the child.
Act is a law passed by the federal or provincial governments. Another name for an Act is a statute. (STAT-shoot).
Affidavit (Aff-uh-DAVE-it) is a sworn, written statement of a spouse or a witness that takes the place of testifying in Court. Affidavits are sworn or affirmed before a lawyer or commissioner of oaths. Affidavits are also used in contested cases. In contested cases the person swearing the affidavit may be required to come to court to be cross-examined.
Affidavit of Service is a sworn written statement proving that someone was given legal documents (such as a Petition for Divorce) in person. It is proof that the person received the documents and had notice of the divorce proceeding.
Affirm is a way to take an oath to tell the truth without swearing on a Bible or other holy book. It has the same effect as swearing an oath on the Bible.
Age of majority is nineteen (19) years of age in Nova Scotia and may be the same or different in other provinces.
Alimony (Al-eh-MOAN-ee) see support.
Answer is a document that lets the Court and the spouse who filed for divorce know that the other spouse contests the divorce. This means the other spouse disagrees with custody, access, support, or division of property and debts. There is a time deadline for filing an Answer.
Answer and Counter-Petition is an Answer where the spouse disagrees with the grounds for divorce and wants to Petition for Divorce himself or herself, in addition to contesting custody, access, support, or division of property and debts.
Application is when one of the spouses asks the court to make an order.
Assets are anything valuable a person owns, such as a house, car, furniture, stocks and bonds, pensions, and money. When spouses divorce, the Court puts their assets into one of two groups: matrimonial assets and non-matrimonial assets. Matrimonial assets are generally divided equally. Each spouse generally keeps his or her own non-matrimonial assets, but there are exceptions.
Best Interests is the test that courts apply when making decisions about child custody or access. The court will try to do what best for the children, not what is best for the parents.
Certificate of Divorce is the court document that proves a divorce is final and the spouses are free to remarry.
Certified copy is a copy of a document that is certified to be a true copy of the original by a government official. If you need a certified copy of a document, a photocopy is not acceptable.
Child of the marriage is a child of two spouses or former spouses who is under the age of majority (19 years) and has not ‘withdrawn from their charge.’ This means the child is still dependent on the parents. The law includes a child born outside the marriage, an adopted child, and may include a step-child, but does not include a foster child. A child who is older than 19 years of age may also be a child of the marriage if he or she is still dependent because of an illness or disability, or if the child attends college or university.
Child Support is money paid by one parent to the other parent for the children. It is usually paid monthly and adjusted yearly based on the paying parent’s income.
Child Support Guidelines (federal) are rules that determine the amount of child support to be paid by divorcing or divorced parents. In most cases, support is based on the paying parent’s income and the number of children. There are special rules that allow for extra child support to cover certain expenses, such as child care, health care, education, and activities like sports and music lessons. If any of these add-on expenses apply, both parent’s incomes are relevant. There are also rules that allow a parent to reduce the amount of support if it would cause undue hardship to pay the full amount. Unmarried parents and married parents who do not file for divorce are covered by Nova Scotia’s Child Maintenance Guidelines. These Guidelines are almost identical to the federal Guidelines.
Collusion (Cuh-LOSE-shun) is when spouses agree to lie to get a divorce or to deceive the Court in some way, such as telling the Court they separated on January 1, 2010 when they actually separated on January 1, 2011. It also includes committing adultery in order to get a faster divorce. If the Court finds out what the spouses have done, the divorce process will be stopped and the Court will not grant a divorce until the proper grounds exist. If the spouse that lied swore a false oath, he or she can be charged with a criminal offence.
Common law relationship is where two people of the same or opposite sex live together as spouses but are not married. Different laws set out different amounts of time before two people become common law spouses. Some laws treat people as spouses from the day they begin to live together. Others require that the spouses live together for one or two years. It is possible to be separated (but still married) to one spouse and be in a common law relationship with another spouse.
Conciliation (Con-SILL-ee-ay-shun) is a process in the Supreme Court (Family Division) where the spouses meet (together or separately) with a court officer called a conciliator. The conciliator helps them to identify the issues they disagree on and can make a basic child support order and order the spouses to provide financial information to the court and the other spouse. The conciliator can also refer the spouses to mediation or schedule a hearing before a judge.
Condonation (Con-DON-a-shun) is when the spouse who files for divorce forgives the other spouse’s adultery and takes him or her back for more than 90 days. If a spouse condones adultery, he or she cannot later use that adultery as grounds to petition for divorce.
Connivance (Con-EYE-vance) is when the spouse who files for divorce agrees, aids, or encourages the other spouse to commit adultery.
Contested divorce See divorce: contested or defended.
Corollary Relief Order (CORE-uh-lair-ee) is the second of two Court orders necessary to finalize a divorce. The Divorce Order (or Divorce Judgment) ends the marriage, and the Corollary Relief Order (or Corollary Relief Judgment) deals with all of the other issues, such as custody, access, support, and division of property and debts.
Court document is any form filed with the Court.
Costs are the legal expenses of a court proceeding including lawyers fees, court filing fees, and other expenses. In a contested case, the losing spouse is often ordered to pay some of the winning spouse’s costs. In uncontested cases, the spouses usually agree to pay their own costs or share the costs of the divorce proceeding.
Custodial (non-custodial) parent (cuss-TOE-dee-al) is the parent the children live with most often. The other parent is the non-custodial parent.
Custody is the responsibility to care for and make decisions for a child. There are four main types of custody.
• Sole Custody us when the child lives with one parent and visits with the other. The custodial parent is responsible for all major decisions affecting the child. The other parent should be consulted about major decisions and normally has the right to receive information about the child’s health, education, and welfare.
• Joint Custody is when the parents share decision-making about the child, though one parent may have the final say if they disagree. The may live mostly with one parent, spend equal time with both parents, or anything in between.
• Shared Custody is where the child spends at least 40% of his or her time with each parent over the course of a year. Under the Child Support Guidelines, this can result in a lower order for child support.
• Split Custody is where each parent has at least one child living with him or her. Under the Child Support Guidelines, the parents figure out how much support each should pay to the other, then the parent paying the higher amount of support pays only the difference between the two amounts to the other parent.
Date of Separation is the date when one or both spouses decide they will no longer live together as spouses. Sometimes this is also the date that one of the spouses moves out, but spouses can be separated and still live together. See also ‘separate and apart.’
Default is where one of the spouses does not do something that the court requires, such as paying child support. Default of Answer is where one spouse files for divorce and the other spouse chooses not to contest the divorce or the custody, access, support, and division of property and debts the other spouse asks for. Also see divorce: uncontested or undefended.
Defended divorce See divorce: contested or defended.
Division of Property is how the spouses divide what they own and also includes division of their debts. Each province has its own laws governing property division on separation. Nova Scotia’s law is called the Matrimonial Property Act. It applies to married spouses and registered domestic partners, but does not apply to common law spouses. Spouses who cannot agree can apply to the court to divide their property after separation or death of one spouse.
Divorce is the legal end to a marriage.
• A contested or defended divorce is where the spouses do not agree on the grounds for the divorce, or cannot settle custody, access, support or division of their property and debts. A judge can decide these issues in a divorce trial if the spouses cannot agree.
• An uncontested or undefended divorce is where the spouses agree on the grounds for the divorce and on how to deal with custody, access, support and the division of their property and debts. Spouses must file paperwork with the court, but do not need to go before a judge to get an uncontested divorce.
Divorce Order is the first of two Court orders necessary to finalize a divorce. The Divorce Order (or Divorce Judgment) ends the marriage. The second order is called a Corollary Relief Order (or Corollary Relief Judgment). It deals with all of the other matters, such as custody, access, support, and division of property and debts. A Divorce Order normally becomes final after 31 days. When it is final, either spouse may apply for a Certificate of Divorce. The Certificate of Divorce allows the spouses to remarry.
Evidence is information given to the court by someone who has sworn to tell the truth.
Exclusive Possession is when the spouses agree, or a court orders, that one of them is entitled to live in the matrimonial home and the other has to move out.
Family Court is a court that deals with custody, access, child support and spousal support but cannot deal with property or grant a divorce. Family courts also hear child protection cases and applications for peace bonds. Family courts operate outside Metro Halifax and Cape Breton. Family courts deal with parents, unmarried spouses, and married spouses who have not filed for divorce. (see: Supreme Court).
Fees are money paid to the court to start a legal proceeding, file a document, or provide a service. Low income spouses can apply to the court for permission to do something without paying the fee.
File is a folder containing all the material relating to a case. Each spouse should keep a file with copies of all documents filed with the court and all other paperwork relating to the divorce. To file a document means to send the document to the Court.
Form is any document required by the court.
Garnishee (GAR-nuh-she) is a court order requiring an employer or government department to pay money owed to one spouse to the Court instead, where it is put towards a support order or judgment.
Grounds for divorce are the legal reasons for divorce. The only ground for divorce in Canada is a marriage breakdown. A marriage breakdown can be proved in one of three ways: (a) the spouses have been separated for at least one year; (b) one spouse committed adultery; or (c) one spouse was intolerably cruel to the other spouse, mentally or physically. The spouse who committed the adultery or cruelty is not permitted to apply for a divorce based on his or her own misconduct.
Joint Application for Divorce is when the spouses apply for a divorce together, as they agree in writing for a divorce and the terms of any corollary relief. Spouses who do this are called joint applicants, or co-applicants. A Joint Application is only for uncontested divorces.
Judgment is a final Court order. Final orders can be appealed.
Leave of the Court is permission of the court, which may be granted on application.
Litigation (Lit-uh-GAY-shun) is a legal proceeding.
Maintenance See support.
Maintenance Enforcement Program is a government program that helps people with child or spousal support orders collect the money owed to them. The program also allows people to receive support without having to contact the person paying support. All support orders granted in Nova Scotia are automatically enrolled in the Maintenance Enforcement Program unless both spouses agree in writing to opt out of the program.
Matrimonial Home (mat-ruh-MOAN-ee-al) is the spouses’ home before the separation.
Mediation (me-dee-AY-shun is a private process to help people resolve differences. Spouses meet, together or separately, with a person called a mediator who encourages them to communicate in a respectful way. Mediation is always voluntary. This means nobody can be required to participate if they don’t want to. Mediation can be a low cost way to resolve issues. It can be particularly effective in resolving custody and access issues. The Supreme Court (Family Division) has a mediation program.
Mediator (me-dee-AY-tor) is a person trained to help people resolve differences. Mediators are impartial (meaning they don’t favour one side over the other). Some mediators are lawyers, but mediators do not give legal advice or make decisions for others. You can find mediators in the Yellow Pages under Marriage and Family Counsellors, Mediation Services and Psychologists or visit the Family Mediation Nova Scotia website at www.fmns.ca.
Minutes of Settlement See separation agreement.
Non-Custodial Parent (non-cuss-TOE-dee-al) is the parent who does not live with or have custody of the children. This parent usually has access (visitation) with the children.
Parenting plan is a written setting out detailed arrangements for a child’s care. It usually covers where the child will live (and with whom), which parent will make decisions relating to the child, what input or decision-making power the other parent will have, what contact the child will have with the parents, and anything else that is important to the child’s welfare. Parenting plans can also set out how the parents will resolve any disagreements they have about the child.
Parties are the people involved in a legal proceeding. In a divorce, the parties are the spouses. In a contested divorce the spouse who files for divorce is called the Petitioner. The other spouse is called the Respondent. If the divorce is uncontested: spouses who file a Joint Application for Divorce are called joint applicants or co-applicants; a spouse who files an Application for Divorce by written agreement is called the Applicant, and the other spouse is called the Respondent. See also Petitioner and Respondent.
Payor is the spouse who pays spousal or child support.
Petition for Divorce (Puh-TISH-un) is a document that sets out the request for a divorce, the grounds for divorce, and information about the spouses, children and basic issues to be resolved. Filing the Petition with the Court is the first step in the divorce process for a contested divorce.
Petitioner (Puh-TISH-un-er) is the spouse who files Petition for Divorce in a contested divorce proceeding. See also ‘Respondent’.
Proceedings are the steps you take in a court case, including a divorce.
Property division See ‘division of property.’
Prothonotary (Pro-THON-uh-terry) is the head clerk of the Supreme Court. Court documents are said to be filed with the Prothonotary when they are filed with the Court. A newer name for the Prothonotary’s office is the Court Administration Office. In the Supreme Court (Family Division) court officers accept documents for filing with the Court. See ‘file’.
Recipient (Re-SIP-ee-ent) is the spouse who receives spousal or child support.
Reconciliation (Rec-un-silly-a-shun) is any attempt by spouses to get back together. Divorce law encourages spouses to get back together if possible and states that if reconciliation fails, as long as the period or periods of reconciliation did not total more than 90 days, the spouses will not lose whatever grounds for divorce they had before they tried to reconcile.
Record is another name for the court file containing all the documents filed in a divorce proceeding. The record is given to the Judge when he or she is asked to decide whether to grant the divorce. You should also keep your own copy of all documents you file with the Court (see ‘file.’)
Relief sought is a term used to describe the type of order requested by you or your spouse, for example; a request for support.
Respondent (Ree-SPON-dent) is someone who has had a legal proceeding filed against them, including a Petition for Divorce or an Application for Divorce by Agreement. If you Petition for Divorce, you are the Petitioner and your spouse is the Respondent. The Respondent is entitled to contest the divorce by filing an Answer, or can seek a divorce himself or herself by filing an Answer and Counter-Petition. If the Respondent agrees with the grounds for the divorce and with custody, access, support, and division of property and debts, he or she does not need to file an Answer. However, if the Respondent does not file an Answer, the Court may not give the Respondent notice of things that happen in the divorce proceeding. If you make an Application for Divorce by Agreement you are the Applicant and your spouse is the Respondent. See also ‘Petitioner.’
Rules of Court are the court procedures that must be followed. Another name for the rules of court is the Civil Procedure Rules. You can find the Civil Procedure Rules online at http://www.courts.ns.ca/Rules/toc.htm. Rules dealing with family law cases in the Supreme Court (Family Division) or Supreme Court are in ‘Part 13-Family Proceedings’ of the Civil Procedure Rules.
Seal is an official Court stamp showing a document has been filed with the Court. The original Petition for Divorce will have a large red seal.
Separation agreements and property deeds usually have a small, red seal. Most other court documents do not have seals.
Separate and apart means that you and your spouse are not living together as spouses. One of the grounds for divorce in Canada is one year’s separation. Usually, living separate and apart means the spouses do not live together any more. It is possible to live separate and apart in the same house but most spouses find it uncomfortable to do this for very long and one spouse eventually moves out. See also ‘date of separation.’
Separation agreement is a written contract between two spouses dealing with custody, access, support, and the division of their property and debts. Most spouses have a lawyer prepare their separation agreement. Married spouses, common law spouses, and registered domestic partners all need a separation agreement to settle their affairs, whether or not they later divorce. If they cannot agree, a trial is necessary. Spouses can get an uncontested divorce by asking the Court to use their separation agreement as the basis for the Corollary Relief Order that goes with their Divorce Order. Spouses can prepare their own separation agreements, without hiring a lawyer, but each spouse should get legal advice before signing a separation agreement. Another name for a separation agreement is ‘minutes of settlement.’
Serve means to give a legal document to someone in person. For example, the spouse who petitions for divorce must arrange to have the Petition for Divorce served on the other spouse by someone else. Once this is done, the person who served the Petition must swear an affidavit of service.
Spouse is a husband, wife, or same-sex partner. A spouse may be a married spouse or common law spouse.
Substituted Service is a way to make sure a person has notice of a court proceeding if he or she cannot be found or is trying to avoid getting legal document, such as a Petition for Divorce. You can apply to the court for an order that allows you to serve someone else (such as a family member, employer, or friend) who is likely to have contact with your spouse and bring the divorce proceeding to your spouse's attention. If you know your spouse's address, the court may also order that you send copies of the legal documents to your spouse by registered mail. If you are applying to court for an order for substituted service it is strongly recommended that you get legal advice.
Support is money paid by one spouse to the other spouse for living expenses of the spouse or a child. Support paid for a spouse is called spousal support. Support paid for a child is called child support. Most support is paid monthly but support can also be paid weekly or bi-weekly. Spousal support is sometimes paid in a lump sum. Spousal support can be tax deductible in most cases. Child support is usually not tax deductible. Support is also called ‘maintenance,’ and spousal support is sometimes referred to in the United States as ‘alimony.’
Supreme Court is the court that hears divorce cases and decides division of property and exclusive possession of the matrimonial home for spouses living outside Metro Halifax and Cape Breton. Custody, access, child support and spousal support are dealt with by the Family Court. For Metro Halifax and Cape Breton see: Supreme Court (Family Division).
Supreme Court (Family Division) is the court that hears all family law cases in Metro Halifax and Cape Breton. (see: Supreme Court.). It deals with all relevant family law issues including both property and custody.
Third party is someone other than a spouse who becomes involved in the divorce process. One example of a third party is an employer who is ordered to provide income information.
Uncontested or undefended divorce See divorce: uncontested or undefended.
Visitation See access.
Waiver (WAVE-er) is an agreement to give up a right to something. The Waiver of Financial Statements and the Undertaking not to Appeal are two waivers which may be used in divorce proceedings.
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