Deborah L. Barron - Calgary Lawyer Divorce Lawyer, Wills & Estate Lawer, Personal Injury Lawyer in Calgary
Injuries Lawyer Car Accident Lawyer •  Legal Questions  Forms   Contact  • Links  Blog  Home

Common Legal Questions

Glossary



Action Number
The file number given to a Statement of Claim when it is filed.  All subsequent documents filed in the same matter will have the same action number.

Adjournment
Rescheduling a Court application to a later date.  To adjourn a court application to a later date, parties must either advise the Court they have agreed to an adjournment or apply to Court for permission to adjourn their court application. 

Adversarial System
A term for Canada's court system where parties on opposing sides provide their respective arguments in support of their position and seek a decision from a court or other tribunal.

Affidavit

A written statement, sworn or affirmed by a Commissioner for Oaths or a Notary Public which provides the Court or other decision making power with the facts you intend to rely on.  Ideally, the affidavit should be typed and divided into numbered paragraphs.

Affidavit of Execution

An affidavit in which one person swears they have witnessed another person who is known to them or whose identity they have verified, sign a document.

Affidavit of Service

An affidavit which describes where and how a document was served upon a person, corporation , partnership or other party to the dispute.

Alternative Dispute Resolution

Options for resolving disputes without litigation and outside of the Adversarial System.  Some of the alternative dispute resolution methods are Judicial Dispute Resolution, mediation, collaborative law, arbitration and negotiation.

Appeal

A review by a higher level court of a court order or judgment granted by a lower level court.  The reviewing court may uphold or confirm the order, change it or send the matter back to the lower level court for reconsideration. There are specific rules which govern this type of review.

Applicant

A party in a litigated matter who files an application to a court for the determination of an issue or a number of issues.

Application

A written request, filed with a Court, for a Judge to grant an order, interim order or whatever form of relief a party is seeking, usually with evidence in the form of affidavits.

Case Management
A procedure which may be ordered by a Judge or a Justice, or requested by the parties which directs that one Judge or Justice will be assigned  to oversee or “manage” interim applications other procedural disputes, leading up to a trial.

Certificate of Lis Pendens
A certificate which may be filed on title to real property indicating that a law suit is pending which may have an impact upon the ownership of the property.

Chambers (Court)

A term commonly used to refer to the courtroom where interim applications will be heard by a Justice of the Court of Queen's Bench, relying on affidavit evidence.

Child

The legal definition of a “child” is different for issues of child support than for issues of custody and access.  For determining child support, an individual will still be considered a “child” if he or she  is under 18 years of age, or is over 18 and remains dependent on his or her parents because of illness, disability or other reasons (which usually includes full time post-secondary attendance.)  For custody and access, an individual will no longer  be considered a “child” if he or she is more than  18 years of age

Clerk of the Court
A person who reviews files and processes documents submitted for filing at Court.  Also a person who sits in a Courtroom to organize court files for the Judge and to record all matters stated before the Judge or Justice.

Commissioner for Oaths
A person who is authorized by the Province to take oaths.

Consent Order
A court order containing terms which have been agreed upon by both parties involved in a dispute and approved by the Court.

Contempt of Court

The willful disobedience of a court order.

Costs
An amount of money a Judge may order a losing party to pay to a successful party.  The actual amount of money awarded is at the discretion of the Judge who hears the application.

Counterclaim

A document filed by a Defendant, which sets out the relief  he or she is seeking from a Plaintiff and the reasons why such relief is claimed.

Court of Court of Queen's Bench and Provincial Court

There are two courts in Alberta which hear family law disputes, these are the Court of Queen's Bench and the Provincial Court.  Divorce applications, the division of property and declarations of parentage must be heard at the Court of Queen's Bench.  Custody, access, child support matters may be heard in either court. 

Court Order

A document which lists matters ordered by a judge, is signed by a judge, filed at court and served to both parties or their counsel.

Cross-Examination

A process in which a party who has sworn an Affidavit or otherwise provided sworn evidence may be placed under oath and asked questions by the opposing party's counsel.  A cross-examination may occur in a Courtroom during a trial or if a party has sworn an affidavit, opposing counsel may cross-examine in their office.  If a party is cross-examined on their affidavit, a transcript of a cross-examination must be filed as evidence in the parties' litigation.

Default Judgment
An order which may be granted to a party if the other party has failed respond to notice of a lawsuit or an application after the expiry of the notice period.

Defendant

The individual who is sued in a lawsuit or a divorce.  

Disbursements

Expenses incurred by a party in a lawsuit, in addition to legal fees.  These may include minor sums such as the cost of filing a document or courier charges, up to more significant amounts for other services used to support the litigation, such as expert witness fees, appraisals or the cost associated with completing a custody assessment.

Disclosure

The exchange of documents which are needed as evidence for litigation.  In family matters, this usually includes documents which substantiate the income, assets and liabilities of the parties.

Dismissal
A judge or justice's refusal to grant an application.

Evidence
Information presented to a Judge to prove or disprove facts and allegations in a case.

Ex Parte
Order

A court order granted without notice having been given to the other party.  This is only granted in rare circumstances, such as when the Plaintiff's physical safety would be placed at risk if notice were given, or, in limited circumstances, when the other party cannot be located.

Examination for Discovery

see “Questioning”

Expert Witness
A witness who has been qualified by a Judge to use the special knowledge they have by virtue of their expertise to provide a Court with their opinions regarding a matter in issue.  For example, a real estate appraiser may be qualified to give an opinion regarding the value of a house.

Filing a Document  

The process of giving documents to the Clerk of the Court to be put into a file at court, Copies of the filed document are stamped by the Clerk of Court to prove the original has been filed.  If the document initiates proceedings, there may be a fee charged for filing the document.  Rules govern the format of documents which may be filed with the court.

Garnishee

A legal procedure that allows for the seizure of money owing pursuant to a court order.  The garnishee may result in money being seized from bank accounts, employment wages, or a variety of other sources.  Once seized, the money is paid into court to pay the debt.

Independent Legal Advice
Advice that is provided by a lawyer with respect to certain agreements, documents, offers of settlement, prior to their client making a decision regarding the agreement, document or offer.  The advice must be given separate and apart from the other party and from a lawyer who works in a different law firm than the lawyer for the other party.   Certain contracts or agreements may require the consulted lawyer to provide a Certificate of Independent Legal Advice acknowledging that they have provided advice to that person.

Interim Order
A court order granted at any time prior to a final order being made.  Interim orders assist to stabilize contentious matters, such as custody, access and support pending trial or settlement.

Judge and Justice
A Judge presides over a Provincial Court courtroom and a Justice presides over a Court of Queen's Bench courtroom.

Judgment

A final order of the Court, usually the order made at the conclusion of a trial or as a consent order which contains the final agreement of the parties.

Judicial Dispute Resolution (JDR)

A form of alternative dispute resolution, in which a Justice or Judge meets with opposing parties and their counsel to facilitates an informal, without prejudice discussion/mediation, in an attempt to resolve the matters in dispute.

Judicial Separation

A separation of husband and wife by the decree of a Court.

Jurisdiction
The power and authority of a Court to hear and determine a dispute.

Litigation

The steps taken to have a matter determined by a Court, once one party sues another party.

Mediation
A voluntary, non-binding process in which parties retain a qualified professional to assist them to resolve their dispute.   Discussions which occur at a mediation will be “without prejudice” to either party.  Some parties may qualify for subsidized mediation through the Provincial Court of Alberta (See Links for more information.)

Mediation/Arbitration

A hybrid process in which parties retain a professional who is qualified to mediate and arbitrate disputes to mediate their dispute, with a written agreement that the professional will arbitrate a binding, final decision, if the parties are not able to reach a mediated settlement.

Mediator

The trained professional who facilitates a discussion between parties aimed at resolving their disputes.

Motion
See Application and Notice of Motion

Negotiation

The process of resolving a conflict through oral or written offers to settle.

Noting in Default

An application a Plaintiff may make, or the process of filing a document, both of which may be made to notify the Court that the Defendant's notice period has expired and the Defendant has not taken any steps.  Once a Defendant has been noted in default, a Plaintiff may seek a default judgment.

Notice of Motion

A document which is filed with the court and then served upon the opposing party to notify the opposing party that the Applicant seeks an order for particular relief, which will be heard in a  Morning Chambers application or at a Domestic Special application on a particular date.  The Notice of Motion is usually supported by an Affidavit and invites the opposing party to file a response if they oppose the relief sought.

Notice to Disclose

A document which is filed with the court and then served on the opposing party to notify them that they must provide copies of the financial information requested on the document by a particular date.

Order
A Court's decision on a disputed matter.  At the Court of Queen's Bench the parties must draft the decision into a legal document called an order. Once the drafting is acceptable to both parties, it is signed by counsel and then sent to the Court to be signed by the Justice who granted the Order and filed.  At the Provincial Court, orders are often prepared for the parties following the granting of an order.

Originating Notice of Motion

A legal document that initiates certain types of lawsuits and sets a court date for the specified issues to be heard.

Parens Patriae
A Latin term used to refer to the Court of Queen's Bench's inherent jurisdiction to govern or make decisions regarding children.

Parental Alienation

The act by one parent of directly or indirectly, consciously or unconsciously undermining a child's relationship with the other parent.

Parenting After Separation Course (PASS)

A mandatory course run by the Alberta government for separating parents (there are some exceptions).  The purpose of the course is to review matters related to custody, access and child support, with the intention of helping parents to minimize the negative impact of their separation upon their children.  See Links for more information.

Parenting
All parents, married and unmarried, can apply under the Family Law Act (at the Provincial Court of Alberta), for Parenting Orders.  The Court makes its decision based on the best interests of the child.

Parenting Plan

A written document setting out the parents' agreement as to how they wish to raise their children after separation or divorce. The parenting plan may contain details about schedules, decision-making, parenting philosophy, and any other matters important to the parents.

Pension

A fixed sum paid regularly to a person or surviving dependant following his or her retirement from an employer.  A pension, even if it is not yet being paid at the time of marriage breakdown is property that may be subject to division.

Plaintiff
The individual who files a statement of claim initiating a lawsuit against the opposing party or defendant.

Pleadings

A collective term referring to particular documents filed with the court in a lawsuit.  A statement of claim, statement of defence, demand of notice and counterclaim constitute pleadings.

Questioning (formerly called “Discovery”)
A process in which a party to litigation is questioned about their case under oath.  A transcript of the questions and answers is prepared.  In contrast to a cross examination on affidavit, the transcript from a questioning is not necessarily filed with the court.  The purpose of a questioning is to enable opposing counsel to obtain evidence and admissions, to request further information or documents and to assess the credibility of witnesses in preparation for trial.

Respondent
A party in a litigation proceeding who is served with an opposing party's application.

Retainer
The contract which you sign when you hire a lawyer to take your case. It can also refer to a retainer fee, which is the sum of money you give to the lawyer up front that is ultimately applied to fees and disbursements.

Rules of Court
A book of rules that governs the procedure that must be followed to carrying out a court application in the Court of Queen's Bench.

Separate/Separation
To cease living together as a couple, with the intention not to live together again.  Under certain circumstances it is possible for individuals to be separated, although they live in the same residence.

Serve documents
Delivering documents which are filed at court to the opposing side during litigation.  Strict rules govern how documents may be properly served.

Sine Die
Latin meaning “for another day”.  This term is usually used to refer to an adjournment of a court application, without assigning a specific date for a further hearing.

Solicitor/Client Costs

The legal fees incurred by a client during litigation.  A Court has discretion to order an unsuccessful party to pay the successful party's costs, in any amount.  In very rare circumstances, a Court will order full payment of the successful party's legal fees.

Spouse
A married person, or a person defined to be a spouse pursuant to the Adult Interdependent Relations Act.

Statement of Claim

A legal document which is filed at court to commence a law suit.  A Statement of Claim sets out the relief sought by the party initiating the lawsuit and the grounds for the relief claimed.  The individual who files a statement of claim is known as the plaintiff.

Statement of Defence

The legal document which is filed at court when the individual being sued, the Defendant, disputes all or part of the relief sought in a Statement of Claim.  A Statement of Defence sets out the disputed relief, the grounds for the dispute and may also make a counterclaim.

Stay of Enforcement
An order suspending all or a part of a previous order.

Style of Cause

The information listed on Court documents which identifies the names of the parties, the name of the document and the Court where the matter will be heard.

Substitutional Service Order

An Order which allows an Applicant to serve documents to a person other than the other party.  It is granted in situations where the Applicant can satisfy a justice that efforts have been made to personally serve the opposing party, with no success.

Summary Trial/Judgment

An application to a Court to grant a Final Order without the need for a full trial.

Table Support
The amount of child support payable pursuant to the Federal Child Support Guidelines tables.

Trial

A lengthy process in which a Judge or Justice is asked to determine disputed matters, on a final basis, after hearing viva voce evidence (oral testimony) from the parties to the lawsuit or from other witnesses.

Viva Voce Evidence
Evidence which is given to a Court through a live witness speaking in a Courtroom.

With Prejudice
Communication which may be presented to a Court as evidence, at a future date.

Without Prejudice
Communication which may not be presented to a Court as evidence.  Ordinarily communication made to negotiate a settlement and communication during mediation is made on a without prejudice basis.  For certainty, the words “without prejudice” often appear on letters between counsel on matters involving negotiation.

Witness

A person who gives oral evidence in a trial regarding matters in dispute.

Copyright © Deborah L. Barron, Calgary Lawyer, Barrister & Solicitor.        Website by Media Eye Studios