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Common family law terms

Ontario
ontario specific
legal information

Access

Application

  • A proceeding in family court 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 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 not to be true as compared to the other person’s story. This is a much lower standard of proof 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 criteria 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.

Child and Youth Family Services Act (CYFSA)

  • This is the legislation 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 by the parent with whom the children spend less time to the other parent to help with the financial support of the children. It is determined by examining 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, it is necessary to make legal arrangements for how the children spend time with each parent. Custody refers to the parent who has the primary responsibilities for the children; access to 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 where there are concerns about the safety of the children, or it may be unsupervised. Custody and access orders are extremely varied and reflect the needs of each family.

Division of property

  • When married people separate, they must divide up all of their belongings. The law requires that any property they accumulated while they were married be shared equally between them, regardless of 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 and furniture but also includes 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 also sets out how custody, access, support and property division are to be handled. 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 (FLIC)

  • These offices in family courts are a centre for information about family law. An advice lawyer and other staff provide basic family law information as well as information about how to start a family court proceeding. These services are free.

Joint custody

  • This is when parents share the legal responsibility for decisions related to a child, regardless of how the child’s time is shared.

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 toward a common position.

Motion

  • Motions are court proceedings brought on interim matters, while the case is moving toward a final trial. They are commonly used in family court to establish interim custody, access and child support arrangements and to obtain restraining orders.

Parenting plan

  • This is the plan made by each parent describing how they intend to parent post-separation. It could include information about proposed access arrangements and proposed communications systems with the other parent as well as more direct parenting ideas.

Primary residence

  • The home (parent) where the child spends most of their time.

Restraining order

Settlement conference

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

Shared custody or parenting

  • This generally refers to an arrangement in which the child spends roughly equal amounts of time with both parents.

Sole custody

  • This is when one parent has full legal responsibility for the decisions related to a child.

Spousal support

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

Supervised access

  • This is the arrangement made for access when it is not appropriate for the access parent to be alone with the child. This can be informal (for example, with a family member) or formal (at a supervised access centre).

Supervised access exchanges

  • This is the arrangement made when it is not safe for the parents to be together to exchange the children. It can be informal (for example, exchanging the children in a public place, through relatives or at a school or daycare) or formal (at a supervised access centre).
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