Glossary of Terms
- “Make an order”
In Family Court, the judge can make an ‘order’ based on a motion or at trial. Examples are an order for child custody or access based on evidence presented. Essentially, this is the decision that the judge deems most viable and is usually temporary in nature until a final decision can be made (Ministry of the Attorney General, 2019).
An Affidavit is a document made on oath or affirmation, stating the facts known to the person making it, who is called as the ‘deponent’. The deponent states facts known to him or her from the personal knowledge and could attach supporting documents as an Exhibit. The purpose of swearing an affidavit is to provide details of circumstances as per the deponent’s knowledge and belief. The Affidavit can be submitted to the court as evidence.
The individual who initiates legal action (Application) in a Court.
- Arranged marriage
A form of marriage where the choice of groom and bride is largely made by the families of the couple.
- Bail Variation
When a person has been accused of a crime in a court of law they are, depending on the nature of the offence, released on bail while they await trial. Typically, there are certain conditions that are mandated and must be followed to remain outside of custody. Failure to comply with the bail condition is considered a criminal offence and will result in the accused awaiting trial, more often than not, in prison. If an individual wishes to alter any of the bail condition(s) (i.e. no contact orders) they must request a bail variation. This can be completed by either appealing to the Crown, noting valid reasons for the alternate arrangements. If the Crown is unwilling to negotiate the terms, the request for variation can be brought for review before the Court. (Department of Justice, 2015)
- Best Interest of the Child
The “best interests of the child” is a principle stated in law that allows decision-making authorities to be child-focussed. The ‘best interest’ test provides discretion to a judge to decide the disputes involving children within the legislative framework, keeping the child’s interest at the heart of the decision. Simply put, the judge will consider the evidence provided by each party but make the decision based on what is best for the child. The examples of family law cases involving best interest of children analysis are as follows: cases involving issues of custody and access or variation thereof, exclusive possession of matrimonial home, or mobility cases. If the parties before the family court are married, they are governed by the federal legislation i.e. the Divorce Act. If they are not married, the provincial Act (In the case of Ontario, the Children’s Law Reform Act) would provide the framework and specified criteria for deciding what is in the best interest of the child. In family cases involving domestic violence, it allows the court to consider past conduct of a parent when it involves violence or abuse against a spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child.
The Immigration and Refugee Protection Act (IRPA) refers to the need to take "into account the best interests of a child directly affected". Thus, the decisions of Immigration, Refugees and Citizenship Canada (IRCC) or Immigration Refugee Board (IRB) must include an assessment of the best interests of a child who would be directly affected in an Humanitarian and Compassionate Application for permanent residence, or Refugee claim or citizenship application involving children.
Canada has signed International human rights instruments which require children's best interests be given priority consideration courts, tribunals or other institutions.
- Business Entrepreneur program
The Canadian government allowed for entrepreneurs to immigrate if they brought in substantial investments and were willing to invest in starting or supporting a business.
- Canadian Immigration and Refugee Board
The Immigration and Refugee Board of Canada (IRB) is an independent administrative tribunal responsible for making decisions related to immigration, including about who is to be accepted as refugees to Canada.
- Charges laid or Lay Charges
to accuse someone officially of doing something illegal. (Merriam-Webster, Incorporated, 2019)
- Children's Aid Society (CAS)
For over 100 years, the Ontario Association of Children’s Aid Societies (OACAS) has been serving and promoting the welfare and well-being of children, youth and families in Ontario. Their vision is to re-imagine child welfare: to create an effective children’s services system that supports ALL children, youth, families, and communities to thrive. There are 50 Children’s Aid Societies (CASs) and Indigenous Child and Family Well-Being Agencies in Ontario. OACAS is an association representing 49 member organizations. Of these, 47 of 49 are mandated CASs and Indigenous Child and Family Well-Being Agencies; two are pre-mandated Indigenous agencies. More information about the services provided by the OACAS can be found at http://www.oacas.org/
- Conditional Permanent Residence (PR)
In October 2012, the federal government introduced Conditional PR which meant that the sponsored partner or spouse is mandated to live with their immigration sponsoring partner for a duration of two (2) years. This was applicable if, at the time of application the partner fit into the following categories:
The relationship was less than two years; and
There are no children in common.
Failure to meet this condition would revoke the PR status and the sponsored immigrant could be deported. However, as of April 28, 2017, the Canadian government eliminated this requirement; meaning conditional permanent residence no longer applies to any applicants seeking spousal sponsorship (Immigration, Refugees and Citizenship Canada, 2017). The two-year conditional PR has increased the vulnerability of many sponsored newcomers, particularly victims of domestic violence, who were often women.
- Consumer Proposal
A Consumer Proposal is a formal process provided under the Bankruptcy and Insolvency Act which stipulates that an individual (debtor) who borrowed and owes money (known as debt) and are facing financial difficulty to repay it to (creditors) e.g. a person, credit card company(ies) or financial institutions. With assistance of a licensed Insolvency Trustee, the debtor makes an offer to pay off the debt within a certain timeframe. There are many conditions that apply to such consumer proposals.
- Convention Refugee
An individual that is required to leave their country of residence out of fear. Specifically, if the fear is based on discrimination due to an individual’s race, religion, political opinion, nationality, or social group.
- Critique report
An evaluative summary of findings based on the observations of a professional assessor such as a Counsellor, OCL, doctor or psychiatrist etc. This evaluation provides the court with evidence and information notating a child's wishes, also including what they determine to be in their best interests. The court may use the findings presented when determining custody, access, or parenting arrangements. (CLEO, 2017)
- Crown Ward
A child who was found to be a child in need of protection and removed from their parental families permanently. In Ontario, the permanent wards for whom the Province had legal responsibility were called Crown Wards. A child could be removed from the care of his or her parents and put into the care of the Province for reasons that include physical, emotional/sexual abuse, or neglect. They were considered Crown Wards until the age of 18, or until they have been adopted. In 2017, the Child, Youth and Family Services Act (CYFSA) amended this terminology, referring to these youth as a “child in extended society care.” (Ministry of Children and Youth Services, 2018).
- De facto custody
Once partners in a relationship are no longer cohabitating, the partner responsible for making all pertinent decisions related to the children’s well being is said to have De facto custody. If the other partner has accepted this relationship and does not dispute it, it is unlikely that a judge will move to make changes, upsetting the status quo for the children further (Ministry of the Attorney General, 2012).
- Duty to report
Under section 125 of the Child, Youth and Family Services Act, 2017 (CYFSA), every person who has reasonable grounds to suspect that a child (up to the age of 18) is, or may need protection, must promptly report the details of the suspicion and the information upon which it is based to the Children’s Aid Society. This includes persons who perform professional or official duties with respect to children, such as social workers, health care workers, teachers, operators, employees of childcare programs or centres, medical practitioners, police and lawyers. It is not necessary to be certain that a child is or may need protection to make a report (Ontario Association of Children's Aid Societies, 2018).
- Equalization/ Equalization of Net Family Property
At the dissolution of a marriage, there are often assets which have been accumulated by both partners throughout the duration of the relationship. As such, the law protects both parties, ensuring that any accumulation of value is divided equally between both individuals. This is referred to as an equalization of net family property and is only applicable to those couples who were legally married (as opposed to common-law) (Ministry of the Attorney General, 2019).
- Family Sponsorship
Family sponsorship is the second most common category of immigration for Canadians. An individual that is at least eighteen (18) years of age and holds a residential status in Canada (citizen, permanent resident or person registered under the Indian Act), is eligible to sponsor relatives. Predominantly, family sponsorship applies to spouse, partner, parents, grandparents and dependent children. Any individual is eligible to sponsor the previously mentioned individuals if they are able to support them financially, and ensure that they do not require social assistance from government services. To learn more about who may qualify for family sponsorship, visit Government of Canada - Family Sponsorship.
- Gold Jewellery
In some South Asian cultures the bride, before her nuptials, is gifted a portion of her father’s property. Typically, this is in the form of gold jewellery and is considered to belong to her and her alone. The marital partner and family have no rights to these objects and cannot keep them from the bride, nor absorb it as their own. This is often referred to as Streedhan or Stridhan and is the right of the woman (Dixit, 2015). In India, as per Hindu Law, Stridhan is the absolute property of the woman (S. 14 of the Hindu Succession Act, 1956 read with S. 27 of the Hindu Marriage Act, 1955), but this right is not recognized by Canadian courts.
- Independent Legal Advice
If there is a conflict of interest in any legal matter, it is the duty of the current lawyer/paralegal, to recommend their client seek independent legal advice (ILA). In general terms, independent legal advice is provided by an outside lawyer or paralegal who is unrelated to the client’s matter, associated parties, or the lawyer or paralegal, and who does not have a conflicting interest. The purpose of this is to have an outside perspective on a certain topic or decision which is both objective in nature and free of any bias (Law Society of Ontario, 2019). ILA is important to ensure that a client has signed a document after understanding the consequences and with free will and no pressure or undue influence.
- Joint custody
Two people, usually the parents, share the responsibility for making decisions for a child. It does not necessarily mean that a child will spend “equal” time with both parents (Ministry of Attorney General).
- Joint Family
A form of family where the adult son continues to live with his parents along with his spouse and children.
- Landed Immigrant
A landed immigrant is a person who has made Canada their permanent residence but as yet does not have Canadian citizenship.
- Love Marriage
A type of marriage whereby both individuals enter the relationship willingly and of their own accord. It is not arranged. This terminology is primarily utilized in cultures where arranged marriages are more common.
- No-contact condition/order
This is an order in criminal cases mandated either by the police or the court that prevents any direct or indirect communication between an accused person and the victim. The accused is to have absolutely no contact with the victim. Such orders can be arranged at any point during the criminal justice process and typically remains in place until such time the accused is either sentenced or found not guilty at trial. Since September 2014, no-contact conditions have been required for all probation orders and conditional sentences unless:
the Court finds there are exceptional circumstances; or
the victim agrees to the contact (Department of Justice, 2017)
- Non-communication order
The parties in a family court matter may agree that either one, or both, parties shall not communicate with each other either directly or indirectly. An order such as this is requested by the courts and issued based on consent. Such an order is considered to be preventative, requiring parties not to communicate with each other going forward. This is generally based on a history of abuse in the relationship, which may not be recent enough to seek a restraining order. If there is a breach of the No communication order, it potentially becomes a basis for seeking a Restraining Order from the court. If there are children involved, there could be exceptions, such as for communicating for the purposes of child welfare or access scheduling purposes.
- Non-removal order
A Family Court judge is authorized to make a Non-removal order of a child(ren) based on evidence provided that shows there is risk of one parent taking the child(ren) away and would not return to Canada. If such an order is made then either one, or both, parents are not taking the child out of the geographical area specified in the court order (e.g. Greater Toronto Area, Province of Ontario, or Canada). When the court issues such Non-removal orders, it is registered with the Canadian Police Information Centre (CPIC) and is sent to the police with the CPIC Form.
- Office of the Children’s Lawyer (OCL)
The Office of the Children’s Lawyer is an independent, government funded, law office operating within the Family Justice Services Division of the Ministry of the Attorney General. The purpose of the OCL is to provide legal services to children under the age of 18 in the selected civil law matters. Their primary function is to represent the interest of the children in courts such as custody, child protection, civil, estates/trusts, and personal hearings. Because the OCL is government funded, parents are not required to pay for these services. The OCL have Children’s Lawyers and also has clinical investigators on staff who may be assigned to assist lawyers who represent children in particularly difficult custody and access cases, or to provide a report to the Court according to section 112 of the Courts of Justice Act.
Only a judge can make an court order requesting the involvement of the OCL (at the request of one or both parents or by motion). They will do so in cases where the parents/legal guardians of the child are unable to negotiate an appropriate custody arrangement, or if the Children’s Aid Society (CAS) requires their services to assist the family in navigating alternative resolution processes (i.e. mediation). It is entirely at the discretion of the OCL to determine whether or not they will accept the case: it is not mandatory for them to do so despite the court order. In the event that the OCL accepts the case (they receive thousands of requests each year), they will first determine if the child requires a lawyer or a clinician (typically a Social Worker). Both parties serve different purposes when working with the child. The decision as to which is required is typically based on age.
Lawyer - Their role is to converse with the parents or whomever is requesting custody (for example grandparents) to understand the nature of the dispute. They will also speak directly with the child as it is important for the lawyer to understand their wishes before proceeding. Additionally, it is the lawyers’ responsibility to reach out to any other sources, such as teachers or doctors, to understand their perspective and gather any additional information necessary. Based on their findings, they will take a position on behalf of their child client and represent them at the court by providing their feedback as to how to move forward.
Clinical Investigator - Their role is like that of a lawyer as they will communicate with the child, their respective guardians, and any additional parties they feel appropriate. Where the clinician differs is in terms of additional functionalities such as observing the families, making recommendations for resolution, and creating a report for the court which outlines the details of the case and their recommendations. Once the report is complete, the clinician will then share the information with the family and will formally file it with the court.
Both Lawyer and Clinician - If both a lawyer and clinician are assigned to a case, the clinician does not file any sort of report, instead, they assist the lawyer in the creation of an affidavit. (Ministry of the Attorney General, 2005-2006)
- Parallel custody arrangement
This is a form of joint custody whereby each parent is designated sole responsibility for specific areas of decision-making concerning their child. While one parent may govern all decisions pertaining to medical or educational issues that arise, the other would have another set of concerns that they would primarily manage (i.e. financial or legal matters). The court may award this form of custody when the parents have difficulty communicating with one another, making co-parenting difficult and harder for the child. Instead, each parent manages the day-to-day decisions of their assigned domains, thereby eliminating the need to engage with one another. As time passes, and healing begins, communication between separated parents tends to improve and they can, once again, work towards more collaborative child-rearing. Parallel parenting can protect the children`s relationship with their parents, shielding them from conflict (Kruk, 2013). Parallel parenting orders have been made by courts in situations where both parents have been involved with the child and wish to retain decision-making rights, but where the conflict between them is such that a joint custody order is not in the child’s best interest.
- Peace Bond
A peace bond is a protective court order issued by a Justice of the Peace(JP) in a criminal court. Essentially, it is a signed promise that a person will continue to maintain the peace and be of good behaviour for a period of time. It can be filed against a spouse, partner, or any other person with whom there is a relationship with. An individual may apply for this by way of court application or a court (CLEO, 2017).
- Permanent Resident (PR)
A citizen of a country other than Canada who has been given the right to immigrate to Canada and stay in the country permanently
- Privately Sponsored Refugees
These are refugees sponsored by a group of persons in Canada under the Convention Refugee Abroad Class. The sponsors undertake to look after the settlement needs of the refugees for the period of one year after immigration.
These are the actions and activities which take place during a legal dispute. It is a blanket term that defines the entire legal process from beginning to end. This could also refer to a specific type of hearing or trial (Justice Education Society, 2019).
Refugee is a term used for, “a person who flees to a foreign country or power to escape danger or persecution” (Merriam-Webster Dictionary, n.d.). A Convention Refugee is an individual that is required to leave their country of residence out of fear. Specifically, if the fear is based on discrimination due to an individual’s race, religion, political opinion, nationality, or social group.
The individual who is responding to the claims made by the applicant (Justice Education Society, 2019).
- Restraining Order
A restraining order can be requested from a family court if there is fear that a former spouse/partner could potentially cause harm to another member of the family. This is completed within a Family Court and must be mandated by a judge to be considered binding. Typically, it lists a number of conditions in which the spouse/partner must adhere to and obey and can either be broad or detailed, depending on the situation. An example of a general restraining order would be the instruction that the partner/spouse “cannot come near you or your children.” Alternatively, a more detailed order would stipulate that a partner/spouse cannot come to a place of employment, must maintain a specific distance, cannot visit children at school, or try to initiate communication at locations often frequented. It is applied for by way of a court application or a court motion (if urgent) (Ministry of Attorney General, 2009).
- Reunification Counselling
Depending on the circumstances, reunification counselling can be used as a tool to safely, and with the best interest of the child in mind, reunite him/her with one of their estranged parents. It is typically done in the presence of a developmental psychologist who can assist all parties in navigating a reunion in a safe and neutral location. This service could be effective for a myriad of reasons including:
The passing of a significant time-period (i.e. secondary parent worked abroad) and the child has not seen them;
If the estranged parent has attempted to re-establish contact on their own terms with the child but has not been successful;
In a situation when the secondary parent feels as though they have been purposely alienated from the life of the child.
Children can sometimes find the process of reunification emotionally challenging and difficult as they do not wish to cause upset for the custodial parent. There is a lot of fear around what effect accepting a relationship with the estranged parent might have on their primary caregiver. Enlisting the help of a reunification counsellor can help to mitigate the stress associated with this event (Toronto Psychological Services, 2019).
- Risk assessment
A process of identifying, analyzing and evaluating events and or hazards that may be of a negative impact on an individual, child, or a person in their environment. Should a risk be determined to have caused/will cause harm, interventions are established to either eliminate or control the hazard. Pertaining to children specifically, the goal of risk assessment is to investigate and identify potential risk or maltreatment (Ministry of Children, Community and Social Services, 2016).
- Safe Country
In International Law, a safe country of origin is one that is deemed to be democratic whereby its citizens are able to live without fear of prosecution, inhumane treatment, violence, or threat of war (European Commission, n.d.).
- Section 30 Assessment
A Section 30 Assessment must be ordered by a judge prior to proceeding under Section 30 of the Children’s Law Reform Act. It can be at the request of one parent, both, and at the judge’s discretion if s/he feels as though the matter is complex in nature. S. 30 assessment orders are made if the judge has reason to believe that there is a serious clinical issue, much greater than the test for an OCL involvement. It is conducted by a neutral, third party, private assessor (i.e. social worker, psychologist, psychiatrist) who will ascertain the interest and views of all children involved, this is then reported back to the parents and the court in form of an assessment report containing recommendations. Section 30 assessments are privately funded whereas OCL assessments are publicly funded. In S. 30 assessments the parents may be psychologically tested, and the assessment report may contain a psychological or psychiatric opinion. OCL assessors are neutral whereas S. 30 assessors are appointed. In domestic violence cases, it is crucial to have an assessor who understands the impact of violence and trauma on children and parents.
In some South Asian cultures, Shagun are gifts given to the bride (including bangles, gold jewellery, family heirlooms, etc.) which symbolize her acceptance into the family of the groom (Cultural India, n.d.).
- Sole Custody
One person has the responsibility and authority to make major decisions about the child, primarily about the child’s health education and religion.
- Spousal Sponsorship Program
A program that allows Canadian permanent residents/citizens and persons registered as Indian under the Canadian Indian Act to sponsor their spouses/common law partners to immigrate to Canada.
- Spousal support claim
When one spouse claims monetary support from the other upon the breakdown of their relationship, it is termed as Spousal Support claim. It could be claimed by the spouse in need, as a result of financial hardship resulting due to such breakdown and when the other spouse has financial means to pay. Married, common-law or same sex couples are entitled to claim Spousal Support. The Spousal Support Advisory Guidelines are used to calculate the Spousal Support amount and duration.
- Start up visa
Canada's Start-up Visa program allows immigrant entrepreneurs to apply for PR status with their families to establish a business in Canada.
- Temporary Work Visa
A visa given to a foreign national that authorizes them to work in Canada under programs such as the Temporary Foreign Worker Program.
- Transnational Relations
refers to relationships with friends and families in the country of origin that immigrants continue to maintain after migration.
- UNHCR Blue Card
A Refugee Registration Form, commonly known as the Blue Card is one that is issued by the United Nations Higher Commissioner for Refugee Agency (UNHCR). This is provided as per Article 27 of the 1951 United Nations Convention relating to the Status of Refugees. In addition to being an Identity card, it also acts as a residence permit, which allows refugees to register births and deaths, contracting marriage, obtaining employment, housing, hospital care or rations, qualifying for social benefits, entering educational institutions, etc.
- Views and preferences report (Voice of the Child Report)
A Voice of the Child (VOC) Report is a report containing the wishes and views of the child on the issues of custody/ access. A VOC report can be publicly funded if completed by the OCL or privately funded if paid by the parties.
VOC reports ensure that children have the opportunity to be heard in custody proceedings. Such a report, sometimes known as the views of the child, provides information about what the child thinks about his or her life and the issues in dispute between the parents to the court to assist in the decision making process. A voice of the child report is written by a mental health professional, who interviews the child. Unlike a report by the Office of the Children’s Lawyer or a Section 30 custody assessment, this report is non-therapeutic and does not usually contain the professional’s opinion because the report really is intended to simply inform the judge of the views of the child (Luke’s Place, April 2017).
- Visitor Visa
A document which affords an individual permission to visit Canada. With this Visa, a person is eligible to remain in the country for a period of six months, after which time they must return to their country of origin (Government of Canada, 2020).