Fact Sheet: Common Family Law Terms

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by Pamela Cross, LLB

Application: A family court case begins when one person brings an application, in which she lists what she is seeking - for instance, custody of the children, child support and so on.

Arbitration:  Some couples decide to use an arbitrator rather than going to court to resolve their issues after separation.  Arbitrators, who may or may not have legal training, provide a binding decision just as judges do. They must follow Canadian and Ontario law in reaching their decisions, which can be appealed.

Balance of probabilities:  Different standards of proof are required by different courts in order to establish guilt/liability. In family court, the standard of proof is on a balance of probabilities, which means the judge has to believe that one person's story is more likely than the other person's to be true.  This standard of proof is easier to reach than that required in criminal court, which is beyond a reasonable doubt.

Best interests of the child test:  This is the test used to determine appropriate custody and access arrangements for children after the parents separate.  Judges must consider such things as which parent can offer the child the greatest stability, which parent will maintain contact with the child's extended family, which parent has the greater ability to meet the child's needs and so on.  The wishes of the child will be considered if the child is old enough to communicate them.  Judges are required to consider any family violence that has occurred.

Child and Family Services Act:  This is the law in Ontario that governs child protection and the operation of the Children's Aid Society across the province.

Child Support:  This is the money that is paid to the parent with whom the children spend most of their time by the other parent to help with the financial support of the children.  The amount of support to be paid is based on the income of the person who will be paying the support.

Children's Law Reform Act:  This is the legislation in Ontario that governs child custody and access.  Section 24 sets out the best interests of the child test.

Custody and access:  After parents separate, or if they have never lived together, legal arrangements have to be made for how the children spend time with each parent.  Custody refers to the parent who has primary responsibilities for the children.  Access is the time the other parent spends with them.  There can be sole custody, in which one parent has all the legal responsibilities or joint custody, in which these responsibilities are shared.  Access can be supervised if there are concerns about the safety of children, or unsupervised if there are no concerns.  Custody and access orders reflect the needs of each family.

Division of property:  When married people separate, they must divide up all their belongings.  Any property they accumulated while they were married must be shared equally between them, no matter who paid for it.  If the two people cannot agree on this, they can go to court to get an "equalization of net family property."  Property includes physical things like houses, cottages, trailers, cars, boats, furniture as well as pensions, RRSPs and other financial investments.  It also includes debts, for which both people are responsible.

Divorce Act:  This is the federal law that applies to people seeking a divorce.  It is a law that applies to people everywhere in Canada.

Family Law Act:  This is an Ontario law that governs division of family property, support and restraining orders.

Family Law Information Centre:  These offices in family courts are a place to go for information about family law and how to start a family court case.  The services are free.

Matrimonial home:  This is the home where the couple lived, whether it was owned or rented by them.  It can be a house, an apartment, a trailer, a boat -- anywhere they lived as a couple.  It is possible to apply to the family court for an order for exclusive possession of the matrimonial home.  Whichever person is successful in this can then change the locks on the home, and the other person is not allowed on the property.  This does not affect the ownership of the home -- just who can live there.

Mediation:  This is a process in which the separating couple can meet with a third party to try to come to a compromise on issues of disagreement.  The mediator cannot force the people to agree to something but can make suggestions and help them work towards a common position.

Motion:  Motions are court proceedings brought as the case moves towards a final trial or other kind of settlement.  They are commonly used to make interim (temporary) custody, access and child support arrangements and to obtain restraining orders.

Restraining order:  This is an order from the family court that keeps one person away from another.

Settlement conference:  Most family cases involve a settlement conference, when the people, their lawyers and the judge meet to try to resolve the case or at least some of the issues.

Spousal support:  This is support paid by the spouse with the higher income to the other spouse in order to address any financial difficulties that are the result of the marriage (for example, the woman who stays home for 20 years to raise children is likely to receive spousal support from her husband, if he continued working through those years).  People in common law relationships can apply for spousal support.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca