Family Law Dictionary
In the context of family law, when one parent forcibly or wrongfully takes the child out of their habitual residence without consent of the other parent or a court order.
Access under the Divorce Act refers to the time a child spends with a parent who does not have custody of the child. The terms custody and access are only used for family law cases under the Divorce Act. Under the Family Law Act the term used is parenting time.
Address for Service
The address that is used to serve court documents on a person. This is the address that a person puts in their legal documents. It can be a lawyer’s address.
More commonly referred to as “cheating”. When a married person engages in sexual acts with another person other than that married person’s spouse. The common law definition is not limited to persons of the opposite sex and includes persons of the same gender. Under the Divorce Act, s.8(2)(b)(i), adultery is one of the grounds of divorce when proven by evidence.
A document that contains facts that you swear under oath or affirm to be true. A lawyer, notary public, or commissioner of oaths must witness your signature and sign your affidavit. This can be done by videoconference.
A written document that sets out how spouses have agreed to deal with things like parenting, support, and property. It is basically a contract. You can make an agreement before you move in together, while you’re living together, or after you separate. Some agreements, like ones about child support, guardianship, and parenting arrangements can only be made at or after separation.
Alternative Dispute Resolution
Any process that resolves a legal dispute outside of court. This includes mediation, collaborative divorce and arbitration.
The person who is seeking a court order from a judge.
A process in which a person is granted the power of a judge and that person becomes the arbitrator of a legal dispute. An arbitrator can make decisions that are given the force of a court order.
A formally agreement, signed by all of the parties and the arbitrator, that sets out any administrative aspects of the arbitrator’s retainer, the scope of their authority, and the legal issues to be arbitrated.
The binding written decision of the arbitrator that the parties are legally required to adhere to for so long as it remains in effect.
An agreeable upon neutral third-party adjudicator who has the authority under the Alberta Arbitration Act to render a legally binding decision
Child support or spousal support that has not been paid (the payor - the person paying support - has fallen behind in making his or her support payments).
Best interests of the child/children
The “best interests of the child” is a legal test used to decide what would best protect your child’s physical, psychological, and emotional safety, security, and well-being. It looks at factors including:
- The child’s emotional health and well-being,
- The child’s views, unless it would be inappropriate to consider them,
- The child’s relationships with parents, guardians, and other important people, and
- The impact of any family violence.
When you make parenting arrangements after a separation, the law says you must only consider the child’s best interests. And if you go to court, the judge can only consider the child’s best interests in making parenting orders.
Bi-lateral Parenting Assessment
A bi-lateral parenting assessment is a review process conducted by a psychologist to determine what parenting is in the best interest of children after separation or divorce. The assessment leads to a written report that is provided to the court, typically at trial. The assessments usually include psychological testing of the parents but sometimes the children as well.
Case Management is a process where one judge oversees a case. This can be helpful because it can ensure that the case proceeds to court in a timely manner. It also ensures that only one judge hears applications before trial which can lead to consistency in decision-making.
After separation or divorce, child support is the amount a parent pays to another parent to help support the children. It used to be called maintenance. Although parents have the primary responsibility to pay child support, other guardians and step-parents may also have a duty to pay support for the child.
Child Support Guidelines
The Federal Child Support Guidelines are the rules for calculating the amount of child support one parent must pay to the other parent to help support the child under the Divorce Act and the Family Law Act. They outlined how much child support should be paid based on the incomes of the parents, where they live, and the number of children.
Child support order or agreement
Is an order or agreement that specifies how much a parent will need to pay in child support.
The relationship between parents after separation or divorce that is specific to parenting children together. Co-parenting after separation involves parents working together cooperatively to make decisions in the best interests of their children.
Collaborative family law/divorce
A process where the former spouses and their lawyers agree in writing to resolve family law disputes outside the court process. The process is intended to be non-adversarial and can also include financial experts and tax specialists. The emphasis is on fairness and the best interests of the family, rather than winning.
A term often used to describe unmarried couples who live together in a marriage-like relationship for some time. You may be an opposite-sex couple or a same-sex couple. Common-law relationships are now governed by the Adult Interdependent Relationship Act and you need to be in a marriage like relationship for three years to qualify, or have a child, which can shorten this timeframe.
An order a judge can make to help prevent disputes or resolve underlying problems in a family law matter.
A court order entered into by agreement between the parties. A consent order can include provisions on parenting time, guardianship, child support, spousal support, property division, restraining orders and any other matter can relate to. You may be able to file a consent order with the court registry and have it signed by a judge without ever having to appear in court.
Contact/contact with the child
Under the Family Law Act, contact is the time that a person who is not a guardian spends with the child. This person could be a parent who doesn’t have guardianship, or another relative, like a grandparent.
Everything other than divorce. The Divorce Act includes provisions on how to get divorced as well as provisions on custody and access of children, child support and spousal support. Court orders regarding custody and access of children, child support and spousal support are considered corollary relief orders.
A document that records the decision of a judge in court. An order tells the people named in it what they are to do about issues such as guardianship or child support. There are legal consequences for disobeying a court order.
In the Divorce Act, custody is used to describe which parent will live primarily with the children and be responsible for making major decisions for the children. The court is now moving away from the terms ‘custody’ and ‘access’, preferring to use the terms ‘guardianship’ and ‘parenting time’.
Declaration of Irreconcilability
Applies with unmarried parties who asks the Court to declare them to be former adult interdependent partners.
Declaration of Parentage
When someone makes a claim asking the Court to declare the other party to be the parent of a child, relates to adoption matters or for the purposes of child support.
Legal costs for things other than the work done by a lawyer. This can include photocopying and binding costs, cost for an expert report and costs for serving someone with court documents.
The legal end of a marriage. A divorce is granted under the federal Divorce Act. A divorce cannot be granted in Provincial Court.
The federal law that gives the Court the authority to grant divorces. The Divorce Act also includes law on custody and access of children, child support and spousal support.
A court order granting a divorce.
In Alberta, a Domestic Special is a court hearing to deal with issues that are too complex for Morning Chambers. Morning Chambers applications are limited to 20 minutes. A domestic special can range in length from an hour or two, to an entire day.
EICC (Early Intervention Case Conference)
An Early Intervention Case Conference (EICC) is a conference with a judge and former spouses in a family law or divorce case.
The goals of the Case Conference are:
(a) to see if you and the other party can settle some of the matters that you have not been able to resolve;
(b) to talk about options to settle your matters in a way that may not be available to you in a more formal court proceeding;
(c) if settlement is not possible, to hear what the Judge thinks about the strengths and weaknesses of your case and the other party’s case, and to hear what the Judge thinks might happen if your matters have to go to a more formal court proceeding or a trial;
(d) if settlement is not possible, to try to reduce the number of matters that have to go to a more formal court proceeding or trial;
(e) if settlement is not possible, to talk about how the cost and time the court proceeding or trial will take can be reduced as much as possible.
The EICC will take place in a courtroom for one hour. Where in-person attendance is not available, you will be provided with a link for participation by video.
You must attend the Case Conference yourself. You can’t send someone else to attend on your behalf, including your lawyer. If you have a lawyer, your lawyer should come to the Case Conference with you unless you instruct them not to attend.
If you fail to attend the EICC you risk the judge making an order that you pay a fine or costs or making another kind of order against you.
Something that happens at court without the presence or participation of one of the parties in a court case. Normally, for anything that happens in court both sides to the case must be given notice. However, sometimes notice is impractical or unreasonable. If someone cannot be located than it may not be necessary to give them notice of a court application. Also, in some court applications giving notice of the application to the other side may not be required, such as restraining orders or orders to freeze assets.
Examination for discovery
Examination for discovery is an opportunity to learn more about a case through asking a person questions under oath. Typically, the parties to the court case and their lawyers attend the examination for discovery. A lawyer will ask questions to one of the people involved in the case and that person must answer those questions, subject to any objections that their lawyer may have to a question. An examination for discovery can occur in person or virtually. If someone cannot answer a question in examination for discovery, they may be asked to do so later and provide documentation.
Property that is not divided between spouses after separation and divorce. This includes assets that each spouse had before the relationship started, inheritances, gifts, damages in a legal action and insurance proceeds. However, the increase in value of excluded property may be shared, but it depends on the jurisdiction.
The division of Provincial Court that grants court orders under the Family Law Act for guardianship, parenting arrangements, contact, child support, spousal support and child protection.
Family debts include all debts a spouse takes on during the relationship, such as mortgages, loans from family members, bank lines of credit or overdrafts, credit cards, income tax, and repair costs. Family debts like family assets are divided equally after separation and divorce, unless it would be unfair to do so, or there is an exemption.
Family dispute resolution professionals
These include family justice counsellors, mediators, lawyers, parenting coordinators, collaborative family lawyers and arbitrators who can help you resolve a family law dispute.
Family Docket Court
A brief appearance court to help organize how cases are heard. The purpose of Family Docket Court is to allow the Court to better assess what services and court processes will best serve a family’s needs and to better manage family law matters coming into the Court.
Family Law Act
The provincial legislation which governs family law matters including parenting, child support and spousal support. If people are married they can use the Divorce Act or Family Law Act in their family law case. Unmarried people can only use the Family Law Act.
- determining who are the parents of a child, including cases where the child was conceived through assisted reproduction
- determining who are the guardians of a child
- setting out the rights and obligations of parents and guardians
- making parenting orders in cases where guardians are living apart but cannot agree on their respective parenting responsibilities
- determining the amount of contact between children and other people who might be important to them, such as grandparents
- enabling enforcement of time with a child
- determining the amount of child support
- determining the amount of support for spouses or adult interdependent partners
Anything of value accumulated after the date of cohabitation by either party. This includes all assets, homes, vehicles, jewelry, cash, appliances, furniture, art, pensions, stocks, companies, bonds and anything else of value.
Family violence includes physical and sexual violence towards family members. In some jurisdictions it also includes psychological or emotional abuse and property damage. Family violence does not include self-defense.
Someone who can make decisions on behalf of someone else, including a child or a person without their own decision-making capacity. With respect to a child this includes where the child lives, the responsibility for making day to day decisions associated with caring for the child, and the responsibility to make major decisions such as those involving religion, education, health and legal issues.
Independent Legal Advice
Advice received from a lawyer who is totally independent from the person on the other side of a legal action. Advice from a lawyer who only represents you and your interests and has no connection to the person on the other side of the legal action. Independent legal advice is often needed to sign a contract, for example a prenuptial agreement.
An interim order is an order that is only in place until a final order is made. Sometimes they are only in force for a short period of time, but sometimes they are in force for over a year, depending on the availability of a future court date. These orders often deal with parenting time, child support or spousal support.
Interjurisdictional Support Orders (ISO)
An order made in one province to compel someone living in another province or US state to pay child or spousal support. Many provinces and US states have interjurisdictional support order legislation that provides a process on how to get a support order against someone living in another province or state.
JDR - Judicial Dispute Resolution
A JDR is a family law dispute resolution process where ex-spouses and their lawyers meet with a judge, present the basics of their cases, and get an opinion from the judge on what decision would likely be made. Each judge has the ability to run a JDR in their own way and the judge controls the process. Judges will often make recommendations and try to help the parties come to an agreement. A JDR can be binding where a judge can make a decision and produce an enforceable court order, or it can be non-binding where the only orders can be consent orders. One issue with binding JDRs is that there is no recording or record of the process and therefore there is no opportunity to appeal.
A litigant is one of the parties in a court action. Litigation is the process of bringing a dispute before a judge for a decision.
See Child Support and Spousal Support
Maintenance Enforcement Program
An Alberta based government program that helps people collect child support and spousal support. It is governed by the Maintenance Enforcement Act.
A master is a type of judge who can hear certain types of applications.
Mediation is a process in which people who are in conflict retain the services of a third-party mediator to help guide them to a resolution of their conflict. The mediator controls the process, the parties control the outcome.
Mediators are usually lawyers and a mediator’s job is to control the process of mediation with the goal of helping people in conflict come to a resolution. A mediator cannot give advice to any of the parties in dispute as the mediator is to maintain neutrality. The mediator does not work for any one party but works for all of the parties in mediation.
In Alberta, Morning Chambers is a type of court that occurs in the morning and is for any disputes or applications that will take less than 20 minutes to decide.
Spoken evidence presented to the Court or Arbitrator by a witness, usually under oath.
Evidence spoken in court by a witness or party involved in the matter, usually the party or witness is sworn in and the evidence is given under oath.
See Court order.
An arrangement where there is little or no direct interaction between parents. While parenting arrangements that are set up in a parallel manner can be quite effective in reducing the amount of conflict, there is a cost to all family members in that each parent will likely be excluded from certain activities and events and the children would generally not be able to participate in activities that do not coincide with the parenting schedule.
A situation where one parent has corrupted or is corrupting the relationship between the children and the other parent. This can be done consciously or unconsciously.
A person who is specially trained in assisting parents work through conflicts associated with parenting orders. The parenting coordinator can become engaged with a family through an agreement or court order.
A court order that is specific to parenting issues like parenting schedules, communication between parents and counselling.
Time that a child spends with a parent after separation and divorce.
The person paying child support or spousal support.
Claims made in a civil legal action that are documented and filed with the court.
The process in which property is divided between spouses after separation and divorce. This may involve any equalization payment to equalize all assets and debts.
The provincial Court is the lowest level of court in the province. The Provincial Court cannot deal with divorce matters or property division, but can deal with many other family law issues including parenting, child support and spousal support. Provincial Court is meant to be more accessible, requiring less formality of evidence and less forms. Many self-represented litigants prefer Provincial Court.
Queen’s Bench (QB)
The Alberta Court of Queen’s Bench is one level up from Provincial Court. It is more formal than Provincial Court. Any issues under the Family Law Act, Divorce Act or Family Property Act may be heard at this court level.
The person receiving child support or spousal support.
A person responding to a court application.
A separation occurs when two people who have been living in a marriage like relationship, or who are married, decide to separate. Separation does not have to be physical separation, and the spouses can continue to live in the same residence but still be separated.
Financial support paid to a former spouse under an agreement or court order. Spousal support is sometimes referred to as maintenance or alimony. Often spousal support is calculated using the Spousal Support Advisory Guidelines.
A person who is in a marriage like relationship or marriage with another person. Spouses can be same sex or opposite sex.
A court document that demands a person attend at court as a witness or to produce documents.
To swear in / be sworn in / under oath
This is the formal process where a Commissioner for Oaths in and for the Province of Alberta will have the individual being examined on the record swear to their God(s) or make an affirmation on their conscientious that they will tell the truth.
Uncontested matters are those in which the parties agree.
A legal case started without merit to cause harm to another person.