Abuse – This is a ground for divorce. It can also form the basis of a claim for damages.
Access – Also known as visitation, this is a term meaning the right to spend time with a child.
Actuary – An actuary is the person you’ll need to retain to value your pension for family law purposes.
Adultery – This is a ground for divorce in Canada.
Adversarial System – The legal system in Ontario is an “adversarial system.” This means that each party does its best to build its case and to point out weaknesses in the other party’s case.
Affidavit – This is a sworn statement under oath. It is used as a replacement for having a person come to court to testify.
Affidavit of Documents – This is an affidavit in which the person swears that the list of documents is all the documents he or she has that are related to the case.
Air Miles – Yes, these are divisible in your divorce.
Alimony – Another word for spousal support. Normally awarded to compensate for financial hardships suffered due to the marriage or the breakdown of the marriage.
Alternative Dispute Resolution – “Alternative” to resolving the dispute in court – for instance, mediation or negotiation.
Answer – When your spouse applies for a divorce, you normally have 30 days to respond. The responding document is known as an Answer in many parts of the country.
Annulment – This is when you claim that your marriage is void for some reason – such as it was never consummated, or one party was already married. Not the same as a religious annulment.
Appeal – If you are not satisfied with a court order, you can often appeal it. An appeal is a very expensive process, and it is difficult to succeed. Best to get things right the first time.
Application – The name of the document that is filed to apply for a divorce or other family law relief.
Appraisal – To determine the value of certain items that you or your spouse own, for instance your home, you may need to have an appraisal done.
Arbitrator – A person who makes a binding decision about a case. Arbitration has the advantage over court of being quicker and more private, but not necessarily cheaper.
Assessment – This is the process where a trained psychologist or social worker evaluates your parenting skills, your spouse’s parenting skills, performs psychological tests, evaluates the children’s wishes and needs, and interviews teachers, counsellors, etc to find out what the best custody and access arrangement for your children is.
Bankruptcy – Bankruptcy is sometimes a result of a divorce. Bankruptcy does not affect any child support or spousal support payments, nor does it affect arrears of child support or spousal support. However, it will affect the property division.
Barrister – Another word for a lawyer. Originally, a lawyer who did only court work.
Beneficiary – Normally in a divorce, if child support is payable, you’ll need to obtain life insurance with your spouse being the beneficiary in trust for your children.
Business Valuator – Normally in a divorce, if you or your spouse owns a business, it will need to be valued. A business valuator is a trained professional who does this.
Canada Pension Plan – Canada Pension Plan credits that you have accumulated during the marriage are divisible during a divorce. No matter what you and your spouse agree, you can’t contract out of this. This is dealt with separately from other property.
Case Conference – This is normally the first court appearance in a case. Only procedural orders and orders on consent can be made at a case conference. As well, this is a good opportunity to narrow the issues in your divorce case.
Case Law – A lot of family law is based on cases that have previously been decided – known as “case law.” For instance, the statutes set out the factors that a court considers in determining the amount of spousal support. However, to get an idea about how much spousal support you may get in a particular case, you’d need to be familiar with the case law in this area.
Certificate of Divorce – This is a certificate issued by a court stating that your divorce is final and can no longer be appealed. This is the document normally required to prove that you are divorced.
Child Care Expenses – Expenses for child care are to be shared between parents in proportion to their incomes, after adjusting for any tax deductibility of the expenses.
Child Custody – The court may choose to grant custody to one parent (sole custody) or both parents (joint custody) and parents are encouraged to agree on whatever custodial arrangement is in the best interest of their children. Custody has two parts: legal and physical. Legal custody is the decision-making part. Physical custody refers to where the child lives on a regular basis. It can be one of the most difficult areas of a divorce to negotiate.
Child Support – This term refers to the money paid by one parent to the other to help cover a child’s living expenses. Although this may seem straightforward on the surface, determining a person’s income on which to base support payments and deciding what expenses qualify as “add ons” to basic child support can be problematic.
Cohabitation – When two people are in a marriage-like relationship, but one that has not been “legalized” with a marriage license, they are said to be “cohabitating.” In simple terms, this means “living together.”
Cohabitation Agreement – This is the equivalent of a marriage contract for people who are not married (that is, for people who are cohabiting). This document sets out how financial matters will be dealt with if the relationship ends, either through separation or death.
Collaborative Divorce – In a collaborative divorce, the parties and their legal representatives agree in advance that they will resolve their differences justly and equitably without turning to the courts. What many would call an “ideal divorce,” the goal of the collaborative divorce is the future well-being of a family. A collaborative divorce can only occur when everyone is committed to honesty, cooperation, integrity and professionalism.
Collusion – Collusion is the agreement between two (or more) parties to act together to achieve an illegal goal. Before the court grants a divorce application, a judge will want to ensure that divorcing parties haven’t made a false claim simply to get a quick decision. For example, a husband and wife could agree to use adultery as the grounds for divorce even if no adultery was committed, or agree that they separated a year ago when they did not. Collusion is illegal.
Common Law Spouse – “Common law status” takes effect when two adults who are eligible to marry, but have not done so, have lived together for a certain period of time in a marriage-like relationship.
Confidentiality – Confidentiality is a legal concept that makes it easier for you to be 100% honest and open with your lawyer. Any time you speak with your lawyer in a professional capacity, it is a confidential communication, and your lawyer is forbidden — not just by ethics, but also by the law — from revealing anything you’ve said.
Consummation of a Marriage – The word “consummate” means simply “to bring to completion.” A marriage is considered consummated when the parties have engaged in sexual intercourse. Annulment is the process by which a Court states that a marriage never legally existed. An annulment of a marriage — different from a divorce — may be based on the physical incapacity to consummate the marriage.
Contempt of Court – If you disobey a court order, you are in contempt of court. Contempt of court is a serious infraction and is both a criminal as well as civil offence with monetary fines and jail time as possible punishments.
Contested Divorce – When agreement cannot be reached on some or all of the issues of your divorce – child custody, child support, spousal support, division of assets, etc. – this is known as a contested divorce.
Corollary Relief – This term refers to the issues arising out of the breakdown of a marriage other than the divorce itself – issues such as child custody, child support, spousal support and the division of assets.
Cost of Living Adjustment – A cost of living adjustment is an increase in the amount of payments — i.e., for spousal support — that occurs annually. The adjustment is normally based on the Consumer Price Index for your city or province. When spousal support is awarded for an indefinite period, there is usually a COLA clause.
Costs – Costs are payments ordered by a judge, once a motion or trial is decided, to compensate the successful party for some or all of his or her legal fees. Normally, if you are successful in court, you will receive one-half to two-thirds of your legal fees from the other side.
Counselling – Even the friendliest divorce can be a very emotional and stressful experience. To better cope with the pressure, you may want to consider seeing a professional counselor. Therapists can provide invaluable support with understanding, resolving, and coping with the emotional issues surrounding your divorce.
Court – Any location where justice is administered and legal proceedings take place can be a court. “Family Court” is the court having jurisdiction over divorce and family law issues.
Cruelty – Cruelty is one of the grounds for a divorce. It must be of a very severe form. If the cruelty was this bad, you may also be entitled to financial compensation for this.
Debts Incurred After Separation or Divorce – Generally, you will not be found liable for any debts your spouse incurred after separation or divorce (nor will you need to share with your spouse the value of any assets you acquire after separation or divorce).
Defined Benefit Plan – A defined benefit plan is a type of pension plan. A defined benefit plan promises that upon your retirement, you will collect a pre-determined monthly income for life. This amount is sometimes indexed for inflation, particularly in government plans. A defined benefit plan is often one of the most valuable assets in a divorce. It must be included in the division of your property. Normally, an actuary must appraise the value of your defined benefit pension.
Defined Contribution Plan – A defined contribution plan is another type of pension plan. A defined contribution plan is one in which your contributions to a retirement plan are known (defined). The amount of money to be distributed upon your retirement is unknown and depends upon the manner in which the yearly contributions have been invested, and the investment growth experienced over the years. Normally, for divorce purposes, a defined contribution plan is only worth the contributions you’ve made and accumulated growth, less any tax consequences.
Dependant – Dependant is a legal term for someone who is owed support. You have a legal obligation to support your children, your spouse, and even your parents.
Depression – Divorce may bring on depression about a variety of issues from the loss of day-to-day contact with your children to sorrow over “what might have been” with a spouse. Depression can be dangerous and is difficult to deal with without professional help.
Disbursements – Disbursements are the out-of-pocket expenses of your divorce lawyer. This includes expenses such as court fees, couriers, faxes, photocopies, appraisals and valuations of assets, and process servers.
Discovery – The discovery process is the legal procedure for gathering information. Either you or your divorce lawyer will collect as much detail as possible regarding your spouse, particularly your spouse’s financial situation. The discovery process involves requests for documents and questioning of your spouse under oath.
Division of Property – The exact rules for the division of property vary from province to province, but the court generally divides equally the assets accumulated during your marriage. However, a judge can order an unequal division of property based on facts such as whether the marriage was of a short duration, or whether one spouse recklessly depleted property.
Divorce – Divorce is what ends a marriage. If you are living as a common law couple, no divorce is necessary to end your relationship.
Domestic Violence – Domestic violence refers to abusive behaviors used by one person in a relationship to control or simply injure another. Violence is criminal and includes physical assault (hitting, pushing, shoving, etc.), sexual abuse (unwanted or forced sexual activity), and stalking. Although emotional, psychological and financial abuse are not criminal behaviors, they are forms of abuse.
Double Dipping – Double dipping describes the unfairness that results when property is awarded to a spouse in the division of property during a divorce, but is also treated as a source of income for purposes of calculating spousal support.
Enforcement – Just because you’ve got a divorce order doesn’t mean that your spouse will obey it. Enforcement is when you take action to force your spouse to comply with the court order – for instance, you may garnish your spouse’s wages or seize property of theirs. Normally enforcement is done through the courts. However, in cases of child support and spousal support, each province has a government agency that normally handles this. In Ontario this agency is known as the Family Responsibility Office.
Equalization Payment – The law states that upon divorcing, married spouses should share equally in the increase in value of assets (including, but by no means limited to, cars, stocks, pensions, electronic equipment, furniture, collectibles, and art) during their marriage. The law requires the spouse with greater net family property to make a payment to the spouse with the lower net family property in an amount that equalizes the increase. This payment is known as the “equalization payment.”
Estate Planning – Estate planning is a way to arrange for an orderly distribution of your assets after death so that your assets go to the people you choose, and in a way that minimizes income taxes and probate fees. When you separate, your estate planning documents remain valid, so your spouse could benefit from your estate. You should have new estate planning documents prepared.
Examinations for Discovery – An “examination for discovery” in divorce is the questioning of a person regarding a matter at issue in the divorce action. Examinations for discovery are held prior to the trial and outside the court. The parties to the divorce and their lawyers, as well as a court reporter, who will create a transcript of the examination that may be used at trial or on a motion, are the only people who are present at an examination for discovery. That means that no judge or other court officer is present. An examination for discovery is a way of gathering information used to settle your divorce, or to prepare for your trial.
Exclusive Possession – When a married couple separates, both parties have an equal right to stay in the matrimonial home. That means that you can’t force your spouse out of the house unless there are serious circumstances, such as domestic violence. “Exclusive possession” means that the court has given you the right to stay in the house, and your spouse must move out of the house.
Expensive – The costs associated with ending a marriage — from legal fees to the cost of moving and setting up a new household — are, for many people, a huge hurdle to overcome in obtaining a divorce. Your lawyer will be able to give you an overview of legal fees based on your unique situation. But it’s important to remember that predicting the expenses in a divorce is not easy because a variety of factors outside your control. For example, the personality of your spouse and philosophy of his or her attorney can affect the ultimate path that your divorce takes.
Factum – A “factum” is a bound volume of information that is filed with the court with most motions and trials. A factum includes an introduction to what the motion or trial is about, a summary of the facts, a list of the issues in the motion or trial, a statement of the law relating to the motion or trial, and the orders requested from the court on the motion.
False Allegations – False allegations are untrue statements made by one person against another person. In divorce, a variety of allegations, false and true, regarding spousal and child abuse are commonly made. This is often done in the context of child custody cases or to obtain the court’s sympathy on a financial issue. If such allegations are made against you, it is important that you act quickly and respond to them.
Family Law Act – The Family Law Act is the law that governs property division for married couples in Ontario. As well, it governs the issues of child support, child custody, spousal support and other issues for unmarried couples. On these other issues, the Family Law Act is very similar to the Divorce Act.
Family Responsibility Office – The Family Responsibility Office (“FRO”) is a government office created to ensure that people who have a court-ordered obligation to make child support or spousal support payments meet their legal obligations. The FRO has legal authority to collect these payments. They normally do so through wage garnishment, or by threatening to revoke a person’s driver’s licence if payment of child support or spousal support is not made.
Fees – Legal fees for a divorce are quite high. There are many ways to save legal fees, which you should discuss with your lawyer. One of the best ways is to try to avoid court, either through negotiation with your spouse or through mediation.
Final Order – A final order concludes the court’s consideration of your divorce. If you would like to change a final order, you need to appeal it.
Financial Statement – If there are any financial issues arising out of the breakdown of your relationship, you will need to complete a financial statement. A financial statement summarizes your financial situation, and is used as a basis for negotiating the resolution of the issues of division of property, child support and spousal support. On the financial statement, you are required to list your income, your expenses, your assets, your debts, what you brought into the marriage, and what gifts, inheritances or personal injury awards your received during your marriage. The financial statement is a sworn statement, which means that you are certifying that what you’ve put on it is true under penalty of perjury.
Garnishment – Often, child support and spousal support payments are collected by wage garnishment. This means that from each paycheque you receive, your employer deducts a certain amount and sends it to the provincial support enforcement agency.
Gifts – A “gift” is a voluntary transfer of property from one person to another without expectation of payment or reward. Gifts from third parties (that is, gifts from people other than your spouse) are not considered in the division of property on separation, provided that the gift can be traced to an existing asset. One issue that often arises in a divorce is whether money received from a relative was a gift or a loan.
Guidelines – Child support is payable according to the Child Support Guidelines. Under the guidelines, the amount of child support you receive or pay depends on your income, the number of children you have, and where you live.
Guilt – In divorce, you are likely to feel guilty even if you aren’t responsible for the break-up of your marriage. It is perfectly normal to feel guilty about a divorce, but it is important not to let feelings of guilt overwhelm you or cause you to make bad decisions. Guidance provided by legal as well as mental health professionals, or even a support group, are valuable tools for dealing with guilt. Failing to deal with your guilt may lead you to accept a settlement that you’ll regret in a year’s time, when you’re no longer feeling guilty.
Hidden Assets – To divide property during a divorce, the court will look at the assets of each spouse — bank accounts, property, vehicles, household items, etc. During the discovery process, you and your lawyer may need to work aggressively to ensure that your spouse has given a full and complete accounting of his or her property and that there are no “hidden assets” that have been omitted.
Household Goods – Everyday items that make your house a “home” — furniture, appliances, linen, electronics, cutlery — are called “household goods.” For Canadian family law purposes, household goods are valued at “garage sale value” – basically, what you could receive for them if you sold them at a garage sale.
Income Tax – Income tax must be considered when resolving the financial issues arising upon separation. Child support payments are not taxed, nor are they tax deductible. Spousal support payments are taxed in the hands of the recipient and tax deductible by the payor. Matrimonial homes can generally be transferred without tax consequences. So can RRSPs, provided certain formalities are followed. However, the tax consequences of transferring other property must be carefully considered, especially for unrealized capital gains as well as attribution of income from the property. Finally, in certain cases, part of your legal fees for your divorce may be tax deductible.
Indemnity Clause – An indemnity clause provides for someone to be reimbursed if they have suffered because of someone else’s act or failure to act. So, for instance, normally a separation agreement will state that your spouse indemnifies you against certain loans your spouse has. If for some reason you end up being required to pay these loans, the indemnity gives you the right to be reimbursed by your ex.
Indexing – Normally spousal support payments of indefinite length are indexed for inflation – to the consumer price index in your city or province. Child support is normally not indexed, but rather adjusted annually based on changes in the parents’ incomes.
Joint Assets – Joint assets are assets, such as bank accounts, that are owned by both you and your spouse. Normally, you should consult with your lawyer as to the best way to deal with these assets. Otherwise, you run the risk of your spouse taking all of them. While you will eventually get your share of the joint assets, this can take a long time and cause you great financial difficulty.
Joint Debts – Joint debts are monies owed, such as on a credit card, by both you and your spouse. As with joint assets, you should consult with your lawyer as to the best way to deal with these joint debts. Otherwise, you run the risk of your spouse running up your credit cards and lines of credit.
Judgment – A judgment is a court’s final determination of your rights and obligations. It is also the legal document stating the reasons why the judge reached the decision he or she did.
Lawyer – A lawyer is someone who is licensed to practice the law, and is also known as a barrister or solicitor. But your lawyer is more than your legal advocate. He or she is also your advisor, counsellor, and an “encyclopaedia” of knowledge about divorce law. Because divorce is so stressful and because the outcome of a divorce proceeding will have a tremendous impact on your life, it is extremely important that you select a legal professional that has experience with the family law in your province and is someone with whom you feel you can work effectively.
Life Insurance – Normally, if you are required to pay child support or spousal support, you will also be required to have life insurance to secure this support. This is so that if you pass away before your child support or spousal support obligation ends, there is still money there to satisfy this obligation. Otherwise, your estate may have an obligation to support your children or your ex.
Lump Sum Spousal Support – Spousal support payments are generally made on a periodic (monthly) basis over a lengthy period of time. In some instances, however, the divorcing parties will agree on a single “lump sum” spousal support payment. The receiving spouse is paid a sum of money at one time. It is considered a only final payment of spousal support. Unlike periodic spousal support, lump sum spousal support is not taxed in the hands of the recipient nor is it tax deductible by the payor.
Marriage – The essence of marriage is that it is a bond between two people made up of a network of rights and obligations. In the eyes of the law, marriage is a legal and binding contract between two people. Even in this day of equality, there are significant differences in how the law treats unmarried and married couples when their relationship ends. The most significant is the division of property, which is automatic at the end of a marriage, but not automatic at the end of an unmarried relationship.
Marriage Breakdown – Marriage breakdown is the only ground for divorce in Canada. Under the Divorce Act, there are only three ways in which a marriage can breakdown: one year of separation, adultery, or serious physical or mental cruelty.
Marriage Contract – A marriage contract (also known as a “prenup” or “prenuptial agreement”) is a contract entered into by two people who are about to marry or are already married. The marriage contract sets out what happens in financial terms if the couple separates or one spouse passes away. Although some people find the concept of a marriage contract repulsive, the reality is that everyone has a marriage contract: the terms of the marriage contract are set out by the government in the Divorce Act and the Family Law Act.
Marriage Counselling – For some couples, working with a marriage counsellor, a trained professional with experience in the problems of wedlock, will help them resolve the issues of their relationship and allow their marriage to thrive again. Given how difficult a separation or divorce is, it is often worth trying marriage counselling.
Matrimonial Home – The matrimonial home receives special treatment under Ontario family law. Both spouses have an equal right to possession of the matrimonial home – which means both spouses have a right to stay in the home. As well, in dividing property, you do not get any credit if you brought the matrimonial home into the marriage, whereas you do if you brought other property into the marriage.
Mediation – In less contentious divorces where the parties do not need to turn to the courts to resolve their issues, they may select “mediation.” In this process, a professionally trained mediator, who is a neutral third party skilled at getting people to reach an agreement, helps you and your spouse arrive at a mutually agreeable solution to the issues arising from your separation.
Medical Insurance – Normally, as part of a divorce settlement, you will be required to continue designating your children as beneficiaries of any extended health or dental insurance you may have through employment.
Minutes of Settlement – When a court action is settled out of court, the settlement is written up in what is known as “minutes of settlement.” This document details the agreement reached between you and your spouse.
Motion – It can take a year or more for a divorce case to be completed. That can be too long to wait for certain things – such as receiving child support or spousal support, or deciding on a parenting schedule. In such cases, you need to file a motion with the court to obtain temporary (interim) decisions about the matters in your case. A motion can also be filed if you need direction from the court about procedural matters in your case.
Negotiation – Negotiation is the process of discussing issues arising from the breakdown of your marriage with a view to resolving them. An agreement is usually a compromise representing a modification of the original positions of the spouse. The negotiation can be done directly between you and your spouse, or between your lawyers.
Net Family Property – In Ontario family law, the first step in determining the division of assets is calculating your net family property. This is essentially your assets on the date of separation, less your liabilities on the date of separation, less your net worth on the date of marriage, and less any inheritances, gifts from third parties and personal injury awards received during your marriage that are traceable.
Notional Disposition Costs – There are often financial consequences to cashing in an asset. For instance, if you cash in an RRSP, you will need to pay income tax on the proceeds. If you sell a plot of land, other than your primary residence, there may be capital gains tax. In selling your home, there may be real estate fees. These financial consequences of cashing in an asset are known as notional disposition costs. In calculating the division of property on divorce, if you use the actual value of your assets, you will be overstating their value. To account for this, you must deduct any notional disposition costs from the value of the assets.
Notary Public – A notary public is a person authorized to administer oaths, and to execute or certify certain documents. All lawyers are notaries public in addition to being barristers and solicitors.
Offer to Settle – An “offer to settle” is a legal document that details a formal offer made by one spouse to the other. The purpose of an offer to settle is two-fold: to try to resolve the case without incurring further legal expenses, and to put costs pressure on your spouse to resolve the case. If, at the end of your family law case, you do as well as or better than your offer to settle, your spouse will be required to pay a much higher portion of your legal fees than otherwise.
Order – An order is a direction by the court to do or not do something. It is a mandatory direction that must be followed and is binding upon the parties to a legal action. “Interim orders” are temporary and may be issued while the facts of a case are being decided. A “final order” is a permanent order at the end of a trial. Orders made by a judge based the agreement of the parties on specific issues are called “consent orders.”
Parenting – There is a trend nowadays to avoid using the terms “custody” and “access” as there are certain win / lose connotations to these terms. Instead, the court will make parenting orders, which specify how the decisions in the children’s lives will be made.
Parties – The people on either side of a divorce are called the “parties” to the proceeding.
Paternity – Paternity defines the relationship between a father and his child and can be determined with a simple DNA test. Even if the children are not biologically the father’s there may still be a requirement to pay child support.
Pawns – In chess, pawns are moved around the board and sacrificed, when necessary, to protect the king and queen. In divorce proceedings, it is very often children who are “pawns,” used by their parents to inflict pain, with little consideration as to the suffering of the children themselves.
Pension – In family law, pensions are a part of the family’s assets and the value of the pension must be divided. Some pensions – normally government pensions or pensions from large companies – are worth a considerable amount of money, perhaps more than your home. Don’t rely on what the employer says the value of the pension is – always obtain an actuarial valuation of the pension.
Pleadings – The pleadings are the legal documents that set out your divorce case. They tell the court what you are asking it to order, and why the court should make an order in your favour. Generally, the pleadings consist of the application, the answer (and counterclaim), and reply.
Post-judgment interest – Post-judgment interest is interest payable on the money you are owed. It begins to accrue when the court gives judgment.
Post-secondary education – The calculation of child support for “children” attending post-secondary education (university, college, and so on) is problematic. The child support guidelines leave it to the judge’s discretion as to how much child support is payable in these circumstances.
There are two general trends in the case law. First, the court may order that the child support payor pay the table amount of child support, plus his or her proportionate share of a limited number of post-secondary education expenses (normally, tuition, residence and books).
Another approach taken by many judges is to require payment of approximately half the table amount of child support, plus the proportionate share of all post-secondary expenses (including food, transportation, and so on).
Power of Attorney – A power of attorney is a legal way to let one person act on behalf of another. A separation does not revoke powers of attorney. When you separate, it is important to have new powers of attorney (for both health care and property) prepared.
Pre-judgment Interest – Pre-judgment interest is interest that accrues on money owed to you from the date of separation until the date the court decides how much money you are owed. This can be important, as often there is a delay of a year or more between when your divorce starts and when it is finally decided. Pre-judgment interest is not always awarded – it is generally limited to cases where the person owing the money had the benefit of the money during this time. So, if the money you are owed comes from the sale of a matrimonial home, and you were living in the matrimonial home during this time, it is unlikely that you would get pre-judgment interest.
Prenuptial Agreement – A prenuptial agreement is a contract between two people in a relationship that governs what the financial consequences will be in the case of separation, or if one of them passes away.
In Ontario, there are two types of prenuptial agreements: marriage contracts and cohabitation agreements. Marriage contracts are prenups between people who intend to marry in the near future or who are already married. Cohabitation agreements are agreements between an unmarried couple who are living in a common-law relationship.
Questioning – Questioning is when the opposing lawyer asks you questions about anything he or she thinks is relevant to your divorce. Everything you say will be written down by a reporter, who will produce a transcript that can be relied on as evidence by the opposing lawyer. Questioning occurs at a court reporter’s office, and not in court. A judge is not present.
The goal of questioning is to encourage a speedy settlement or, if settlement is not reached, to promote a fair trial by allowing each side to learn exactly what the other is expected to say. In the course of the questioning each lawyer learns where there are areas of agreement so they can avoid obtaining unnecessary evidence for the divorce. Admissions are obtained that can be used at the trial. . Each side is tied down to a position. At the end of the questioning each side should have the data it wants about the other party’s income, assets, liabilities, evidence to be given on important points, and the back-up documentation.
Armed with this information, it is much easier for each lawyer to assess the strengths and weaknesses of the case, negotiate a fair settlement or represent his or her client effectively.
While questioning is not required in all divorces, it is important that it be done in complex cases, in cases that are going to trial, or in cases where the facts of the case are hotly disputed.
Questions about Divorce – It is common to have questions about divorce: how do I begin, how long will it take, how much will it cost, who will raise our children, who will get our home, etc. Divorce is complicated, but the help of a compassionate, experienced lawyer means that it doesn’t have to be confusing. A good lawyer will be prepared to answer all your questions in detail and make you as comfortable as possible
Real Estate Appraisals – A real estate appraisal is a way to determine the value of your home or other property. A substantial portion of a married couple’s wealth normally consists of the real estate they own. When getting a divorce, it is important to hire an experienced and professional real estate appraiser who can be impartial and arrive at a supportable opinion of value. The reality is that the legal fees involved in arguing about the value of a piece of property can be substantially more than the cost of an impartial appraisal.
Reconciliation – Reconciliation literally means “re-establishing cordial relations.” Usually, by the time a couple decides to petition for divorce, they have decided that there is no chance of reconciliation of their marriage. However, a court must refuse a divorce if it finds that there is a reasonable chance that a couple may reconcile.
Reply and Counterclaim – If you’ve been served with divorce papers, you need to respond to them. To do this, you prepare a document known as a “reply.” In your reply, you set out the areas of disagreement with your spouse, as well as any reasons why the court should not grant your spouse what he or she is seeking. If you would like to ask the court for anything, you also will file a counterclaim, which sets out what you are seeking from the court.
Respondent – The person filing the application for divorce is called the applicant, while the other party to the divorce is referred to as the respondent.
Restraining Order – A restraining order is an order issued by the court to prevent a person from doing something. Most people are familiar with restraining orders that keep a violent spouse away from a spouse who has been physically or mentally abused. In family law, restraining orders may also be issued to stop one spouse from traveling out of the jurisdiction with a child, to keep one party from harassing another, and to prevent someone from disposing of assets.
Retainer – A retainer is the money you pay to your lawyer for his or her services. It is like a last-month’s rent deposit. It is held by your lawyer in a special bank account known as a trust account. Your lawyer cannot touch these funds until he or she sends you an invoice, at which time the amount you are billed is deducted from your retainer.
Retainer Agreement – A retainer agreement is the contract you enter into with your lawyer. It sets out that the lawyer will represent you in your divorce, a description of what the lawyer will do, and what the fees involved are.
Retirement Age – This is an important consideration in cases where one spouse has a pension. The value of a pension depends on the age at which the pension holder will retire. The earlier the pension holder retires, the more the pension is worth. This is because the pension holder will receive a pension income for a longer period of time if he or she retires earlier. Generally the pension holder argues that they love their job and would work as long as they possibly could. Their spouse argues that the pension holder is lazy and could not wait to spend the rest of their life on the golf course.
Retroactive Support – Generally, child support or spousal support is only awarded retroactively to the date that court proceedings were commenced. The court will go further back if there is good reason to: for instance, if there were ongoing negotiations about child support or spousal support. The important point is that if you are owed child support or spousal support, or if you are entitled to a reduction in the amount of child support or spousal support you pay, it is important to take legal action quickly.
Rollover – A rollover is a transfer of property that occurs without income tax consequences. On divorce, provided certain Canada Revenue Agency forms are completed, RRSPs can be rolled over. As well, in some cases, it may be possible to transfer capital property without immediate income tax consequences.
Separate – In Ontario, there is no such thing as a legal separation. Rather, a separation occurs when one spouse forms an intention to live “separate and apart” and acts on this.
Separation Agreement – A separation agreement is a contract between two people that is intended to resolve all (or almost all) of the issues outstanding between them as a result of the breakdown of their relationship. A typical separation agreement is arrived at after negotiations between both parties or their lawyers. The agreement typically covers issues such as the division of assets, custody and access, child support and spousal support.
Service – “Service” is the word lawyers use to describe the delivery of a legal document. An application must be served by “personal service,” meaning that it must be physically handed to the person. This is normally done by a person known as a “process server.” Otherwise, generally, documents are served by fax and courier nowadays.
Settlement Conference – A settlement conference is a meeting where the parties to a divorce (and their lawyers) meet in private with a judge to explore ways to settle the issues without going to trial. It is an important step in a divorce case, as if a case is not resolved at this stage, it normally goes on to trial, which is a costly process. If your case does not settle at the settlement conference, normally the presiding judge gives his or her opinion as to how he would decide the case at trial. The weight of this opinion often spurs a settlement soon after the settlement conference.
Solicitor-Client Privilege – It’s important that you be as honest as possible with your lawyer. To help with this, all communications with your lawyer are confidential. This confidentiality is protect by law, and is known as “solicitor-client privilege.”
Spousal Support – Spousal support consists of money paid by one spouse to his or her former spouse after separation. Spousal support is sometimes referred to as “maintenance” or “alimony.”
Statute – Statutes are laws that have been passed by the federal Parliament or the provincial Legislatures. The governing statute in divorces is the federal Divorce Act. However, for property division and for unmarried couples, provincial statutes govern their rights and obligations.
Stress – Divorce is an inherently stressful process. To alleviate some of the stress, it is important to be proactive and in control of your case. An experienced lawyer, familiar with divorce proceedings, can work with you to keep you informed and calm throughout the process. The aid of a counselor or therapist, joining a support group, and talking to friends and family are important ways to de-stress during this difficult time.
Subpoena – A subpoena is a legal document that has been issued by the court that compels someone to give evidence as a witness, and sometimes, to produce a specific document. Failure to obey a subpoena may result in “contempt of court” which can carry with it both a fine and jail time.
Substituted Service – When an application for divorce is “served” on a spouse, it is delivered in person to the spouse. In some cases, it is difficult or impossible to serve your spouse in person. When that happens, the court may allow “substituted service,” meaning that the documents may be delivered by a way other than physically handing it to your spouse. This may be by mail, by e-mail, by notice in a newspaper, or by sending it to a relative or to your spouse’s last known address.
Table – The child support table sets out how much child support you are required to pay, or to which you are entitled. The amount of child support depends on the province in which you live, your income, and the number of children for whom you are paying child support.
Therapist – If the emotional process of divorce is especially difficult to deal with, a therapist or divorce counselor may be able to help you cope effectively. If possible, try and find a professional who is experienced at working with clients who are going through the divorce process. Your divorce lawyer will be able to refer you to someone.
Title of Proceedings – The “title of proceedings” is the official name of your court case as it will appear in all records and documents. In a divorce case, the title of proceedings is normally something like: “Mr. Smith vs. Mrs. Smith.”
Transcript – A transcript is the official record of a court proceeding or questioning. It is created from an audio recording of the proceedings.
Trial – A trial is a formal hearing in a courtroom with a judge. In a divorce trial, each party will have an opportunity to state their claims and offer defences and counter-claims. The judge listens to both sides and makes a final and binding determination.
Uncontested Divorce – An uncontested divorce is a legal action for a divorce only: there are no financial issues or issues involving the children. The divorce proceeds on the ground that the spouses have been separated for one year, and there is no dispute that a year has passed since the spouses’ separation.
Unused Vacation Pay – The definition of property in Ontario is very broad, and includes pretty much everything, including a person’s unused vacation pay on the date of separation.
Valuation Date – The valuation date is the date of separation. A person’s assets fluctuate in value over time. So, it is important to determine the exact date of separation, which determines the day on which assets are valued for separation purposes.
Visitation – “Visitation,” more properly called “access,” is a right granted by the court that permits a parent or other relative to visit a child on a defined basis. You should work to create a visitation schedule in writing so that both you and your ex- spouse are clear about the details. This will prevent misunderstandings, confusion, possible resentment, and likely, litigation in the future. It will also help the children understand the schedule, and give them a sense of order and stability during a time of upheaval.
Will – A will is a legal document that details how you would like your property to be disposed of after your death. When you separate, it is important that you get a new will drafted for you. In Ontario, a separation does not invalidate a will. In Ontario, a divorce invalidates the provisions of a will dealing with your spouse. While this may sound like what you want, it may leave holes in your estate plan that need to be fixed.
Without Prejudice – Settlement negotiations and mediation are generally done on a “without prejudice” basis. This means that anything stated in mediation or in an attempt to settle your divorce can’t be used in court. For instance, if you try to settle your case by saying you don’t want any spousal support, when you go to court your spouse can’t state that you are willing to forgo spousal support, and so should not be awarded any.