Understanding Ontario Family Law Lingo – Some Common Terms Defined

Access

It is defined as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during the time.

The term “access” is now referred to as “parenting time”, pursuant tothe amendments to the Divorce Act, Family Law Act, and the Children’s Law Reform Act, that came into effect in March 2021.

Affidavit

This is a sworn legal document. The author of the affidavit, by signing, swears and promises that the content is accurate and truthful to the best of their knowledge. Affidavits must be signed in front of a lawyer, justice of the peace, notary public, or commissioner for taking affidavits.

Alimony

This term is referred to as “spousal support”. It is money paid by one spouse to the other after separation. The Courts usually looks first at eligibility, and then quantum and duration.

Spousal support can be either paid monthly or in a lump sum amount. The Divorce Act states that the Court must consider the condition means, needs, and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement, or arrangement relating to support of either spouse.

Annulment

This is the declaration by the Court that a marriage is null and void.In other words, it means that the parties were not actually married.

In Ontario, there are very limited grounds when a marriage will be annulled. Some of the examples include a spouse already being married at the time the marriage took place. Another example is if the marriage was performed under duress.

Appeal

This is the process by which a party may have an Order given by a Court reviewed by a higher Court based on an error of law or fact on a decision.

In some situations, leave needs to be granted for an appeal. This means that permission must be sought from the Court before the appeal is brought.

Application

The first document submitted to the Court in a family law matter. TheApplication details the issues relating to the breakdown of the marriage as well as Orders being sought by the Applicant (see the definition above).

Arbitration

This is a form of Alternative Dispute Resolution (see definition above). The Arbitrator is a neutral third party, chosen by the parties to a matter, who hears both sides and then makes a determination of the outstanding issues in a matter.

Assessment

The Children’s Law Reform Act states that the Court may appoint an expert (a psychologist, social worker, psychiatrist, or mental health professional) to assess the needs of the child as well as the ability and willingness of the parties or any of them to satisfy the needs of the child.

The assessment is a report prepared by the expert.

Best Interests of the Child

The best interest of the child is a test used by the Ontario Courts to determine decision-making responsibility and parenting time schedules for the children. This test is outlined in section 24 of the Children’s Law Reform Act.

In determining this, the Court usually considers a number of different factors including but not limited to the child’s age, relationship with each parent, the child’s views and preferences (the weight of which depends on their age and level of maturity).

Breakdown of a relationship

This is also known as separation. It is when a couple decides that they no longer want to be together.

A relationship may also breakdown as a result of the death of one party.

Case Conference Brief

Is a document both parties must submit prior to the case conference date.

The document outlines facts and information regarding the case.

Child support

Is the amount of money paid, typically by one parent to the other, to cover the costs of caring for a child.

It is usually based on the income of the payor and the number of children. It is paid to the parent who has the child[ren] living with them most of the time, by the parent who has secondary parenting time with the child[ren].

In a situation where parenting time is split equally, child support is calculated based on each parent’s income and then the difference is paid by the higher-earning parent, in what is called a “set-off” amount.

Coercive controlling behaviour

This is a factor relating to family violence. It is a series of abusive actions to intimidate and control a family member or an intimate partner.

Collaborative Family Law

Is a form of Alternative Dispute Resolution (see definition above). This term refers to both parties working on resolving the legal issues collaboratively with their representatives who are trained Collaborative Family Law Lawyers.

Common-Law Spouse

Is a person, not legally married to their partner but has continuouslyresided with them for at least three (3) years, or is in a relationship of some permanence and are the natural or adoptive parents of a child.

Consent to Order

This is a written and binding document that formalizes the issues that the parties are in agreeance to.

Contact

Pursuant to the amendments to the Children’s Law Reform Act, this term refers to “access by a non-parent to a child”.  It is defined as the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time.

Corollary relief

The term refers to the issues arising out of the breakdown of a marriage other than the divorce itself. These issues may include, child decision-making responsibility, parenting time, child support, spousal support and the division of property.

Canada Pension Plan (CPP)

Generally, a person who works and has attained the age of majority contributes to their CPP if they earn over a certain amount. The CPPcredits accumulated during the marriage are divisible during a divorce.

Custody

This term is now referred to as “decision-making” pursuant to the changes in the Divorce Act, Family Law Act, and the Children’s Law Reform Act, that came into effect in March 2021. This term is nolonger used in Ontario.

Decision making responsibility

The right to make important decisions about a child’s well-being including decisions regarding:

Defined Contribution Pension Plan

A pension plan in which both the employer and the employee contribute to the employee’s pension over time. The contributions to the retirement plan are known.

Disbursement

Out of pocket expenses other than the lawyer’s fees. These expenses may include Court fees, process server fees, faxes, photocopies, and appraisals.

Division of Property

Is the process of dividing a married couple’s assets and debts after their separation.

Assets and/or debts that have been accrued by both spouses between the date of marriage and the date of separation are to be split equally.

Generally, the spouse with the higher number pays half of the difference of their Net Family Property to the spouse with the lower number. This is known as equalization.

Depending on the facts of the matter, sometimes the parties could also request an unequal division of the Net Family Property.

Common-law spouses, while not entitled to equalization, may be entitled to a division of family property.

Divorce – Joint

This occurs when both spouses file the Application for divorce jointly.

Domestic Violence

Abusive behaviors and/or actions used by one person to control or injure their partner. This may be in the form of cruelty (see definition above) or abuse (see definition above).

Enforcement

When you take an action to force the other party to comply with the Court Order.

Equalization

Any assets and/or debts that have been accrued by both spouses between the date of marriage and the date of separation is to be divided equally.

The spouse with the higher number pays out one-half of the difference of their Net Family Property to the spouse with the lower number. This is done in order to equalize the value of each spouse’s Net Family Property.

Exclusive Possession

Refers to a right given to one person to occupy a home, while the other party is not allowed on the property.

Generally, both spouses have an equal right to occupy the matrimonial home regardless of who is on the title until the divorce is finalized or an Order is made regarding the matrimonial home. However, one spouse may apply for exclusive possession if living in the same house breeds too much conflict or there is domestic violence.

Exhibits

A piece of evidence (see definition above) generally attached to a Court document to prove a fact. For example, in an affidavit, when a person refers to what was said on a certain date, they may add an email from that date as proof of what was said. This will be attached as an Exhibit to the affidavit.

Family Responsibility Office (FRO)

Is an agency of the government that oversees enforcing support payments (child and spousal) pursuant to a Court Order or a Separation Agreement.

Once FRO is involved in a matter, they can actively collect support payments directly from the Payor.

Final Order

An Order granted by the Court settling the matters contained withinit. For example, a Final Order may be granted with respect to spousalor child support. A final order may always be varied by filing aMotion to Change, Consent to Motion to Change, or by Appeal.

Gatekeeping

Refers to a parent limiting the other parent’s parenting time, interaction and or communication with the child.

Hague Convention

The Hague Convention is a document signed and ratified by multiple countries to protect children and their families. For example, if a child who ordinarily resides in Canada, is taken to Australia without the consent of biological parents. Pursuant to the Hague Convention, Australia has a duty to return this child to Canada.

Independent Legal Advice

Refers to each party acquiring their own legal advice from different or separate lawyers.

Interim Order

Refers to a temporary Order given by Court before trial or a Final Order.

Loco parentis

Is a Latin phrase meaning “in place of a parent”. If a person is said to have stood in loco parentis, it means they took the responsibility of being a parent for that child[ren]. This term generally applies to stepparents.

Material Change in Circumstances

Refers to something that was not contemplated by the parties when they entered into an Agreement or obtained a Court Order.

It allows the Court to change a Final Order. What classifies as a material change could be defined by the parties or may be inferred through case law. An example of a material change is if a child begins living with the support Payor. This changes the child support obligations for the support Payor such that the Payor might become the support Recipient.

Mediation

Is a form of Alternative Dispute Resolution (see definition above). Both parties meet with an impartial third party who assists them toreach an agreement.

Minutes of Settlement (MOS)

This is a document signed by both parties setting out the agreement reached between the parties. Partial Minutes of Settlement refers to settlement of some of the issues in a matter.

Motion to Change

Is an originating process where a moving party is seeking to vary a previous Court Order or an Agreement.

Notional Disposition costs

This is the amount paid when an asset is cashed out. For example, in selling a home, there may be real estate fees. Another example maybe a plot of land, other than primary residence, being sold and there are capital gains tax.

They are notional because they have no been incurred yet but the party who own’s the property is allowed a deduction for them.

Office of the Children’s Lawyer (OCL)

Is the government-funded office that represents children under the age of eighteen (18) years in some Court cases.

The OCL is not automatically involved in Court cases dealing with decision-making responsibility and parenting time. They must agree to accept a case. The OCL has clinicians and lawyers across the province. They prepare reports about a child’s needs, views and wishes.

Parenting Plan

Refers to a written agreement between the parties that outlines issues surrounding decision-making responsibility (see definition above) and/or parenting time (see definition above).

Paternity Agreement

Is a written document used by parties who are not married but have children. They are generally used to address issues of child support which may be filed with the Court and/or register with FRO for enforcement.

Pre-judgement interest

Is interest awarded to a party for loss of use of money for the period. In family law, it is usually calculated from the date of separation until the date the Court makes an order.

There is a general legal principle that the recipient of a monetary award ordered by the Court is entitled to pre-judgment interest.

Questioning

A party may be granted the right to ask the other party or a third person questions about anything relevant to the party’s matter.

Questioning is generally conducted outside court, in the presence of a reporter who prepares the transcript.

Relocation

The Children’s Law Reform Act defines this term as the change in the residence of a child that will have a significant impact on the child’s relationship with other people who have decision-making responsibilities, parenting time or contact.

Resulting trust

This is a remedy granted by the Court wherein a spouse (married or unmarried) whose name is not on the title is allowed to share in the value of the property. It is an equitable remedy, therefore, it is granted only if the Court decides that it is fair to do so.

Retainer Agreement

Is a contract an individual enters into with their lawyer. The Agreement identifies the parties, the services to be provided to the client, outlines the legal fees and circumstances in which the agreement may be terminated.

Section 7 Expenses

Also known as Extra-ordinary expenses or Special expenses. They are expenses that are out of the ordinary for the child. Ordinary expenses include clothing, food, and shelter. Section 7 expenses include extracurricular activities like daycare, dance classes or university costs. These expenses must be reasonable given the parties’ financial situation and necessary because they are in the child’s[ren] best interests.

Separation

This is when a spouse and/or a partner (married or common-law) decides they no longer want to continue their relationship and to cohabit.

Service

Service means delivery of a legal document. There are various forms of service of legal documents. An application, for instance, must be served by “personal service,” meaning that it must be physically handed to the person.

Settlement Conference Brief

This is the document submitted by both parties before the Settlement Conference, summarizing facts and outlining their arguments.

Spouses

The legal definition of a spouse is a person who has pledged to wed another person and be united in marriage. However, spouses in Ontario encapsulates both married and unmarried spouses. To fall under the definition of unmarried spouses, the parties must have been cohabiting for a period of at least three (3) years or are in a relationship of some permanence, if they are the parents of a child.

Supervised Parenting Time

Is arranged if there are safety concerns about a child’s visit with their parent or during the parenting time exchanges. It provides a neutral and/or safe setting for visits between the children and a parent.

Temporary Order

This is also known as an interim order (see definition above). This is an Order granted by the Court that lasts until:

A temporary order may also be given pending the time that one of the parties completes an action.

Trial Management Conference Brief

This is the document served and filed before the Trial Management Conference. It outlines the theory of the case, list the witnesses that each party may have and identify the time needed for trial.

Trial

Is a formal hearing in a Courtroom with a Judge to get a final resolution of the issues in the case. Each party has an opportunity to state their claims and offer defences and counterclaims.

The judge at trial is different from the judges at the conferences. In Ontario, family law trials are heard only by a judge.

Undue hardship

This means financial hardship on the part of a payor. Generally, it implies that the payor is unable to meet up to their support obligations because they cannot afford it.

Variation of Order

Also referred to as Motion to Change (see definition above) where a moving party brings an application seeking variation of a Final Court Order or an Agreement, based on a material change in circumstances.

Without Prejudice

Refers to without any loss or waiver of rights or privileges. This is a designation that may be included in written communication from one counsel to another when engaging in settlement conversations.

It is inserted to ensure that a person’s rights and privileges are protected regardless of the content of the communication.