Difference between pages "Enforcing Support Orders and Agreements" and "Criminal Law Glossary (1:App F)"

Revision as of 22:55, 30 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 4, 2021.

Absolute Discharge

An accused pleads guilty or is found guilty but has no conditions or probation period imposed. There will be no conviction on the criminal record.

Accused

The person whom the Crown charges with a criminal offence.

Actus Reus

An essential element of the criminal offence; what the accused physically did to commit the crime.

Adjournment

A postponement; an accused or clinician can ask for this at an appearance if they need more time before deciding what to do about the charge.

Admission

A statement made by an accused to a civilian witness.

Agent

An appearance made by a person other than the accused acting on behalf of the accused.

Alternative Measures

A program offered by Crown to divert the offender away from the criminal justice system. No guilty plea is made and charges are stayed. An acknowledgement of guilty and expression of remorse are required by the client.

Appeal

Formally contesting the verdict or sentence.

Appearance Notice

A notice provided by a police officer requiring the accused to attend court at a certain date and time.

Arraignment Hearing

A hearing in front of a Judge or JP where the accused decides whether to plead guilty or go to trial.

Bail

Refers to the release (or detention) of a person charged with a criminal offence prior to a trial or guilty plea.

Bail Conditions

Release conditions imposed on an accused that they must abide by in order to be released from custody prior to trial or plea.

Bench Warrant

A bench warrant is an order issued by a judge requesting the detention of a person until they can appear in court. Such an order is often issued because a defendant did not appear in court.

Complainant

The person who usually makes the report to the police about having been the victim of a crime.

Conditional Discharge

A period of probation imposed on an accused where after the period is complete, no convictions will appear on a criminal record.

Conditional Sentence

A conditional sentence is a jail sentence that you serve in the community instead of jail. Judges will use a conditional sentence only if they are satisfied that you won’t be a danger to the community and do not have a history of failing to obey court orders.

Confession

A statement of guilt made to a police officer or another person in authority.

Cross-Examination

The interrogation (leading questions) of a witness called by the other side.

Crown Counsel

Lawyers appointed by the government who prosecute criminal cases.

Custodial Sentence

A sentence served in jail.

Detention

A suspension of an individual’s liberty by physical or psychological restraint.

Direct Examination

Where the defence or Crown questions its own witnesses.

Disposition

If a matter in court is “for disposition,” this means there will be a guilty plea instead of a full trial.

Duty Counsel

Lawyers paid by the government who work in the court house and advise accused with basic legal information and basic court appearances.

Election

For indictable offences, where the accused can decide whether to have their case tried in Provincial Court or Supreme Court (and with or without a jury).

Ex Parte

Proceeding without the accused present.

Hearsay

Evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them.

Hybrid Offence

An offence where the Crown can choose to proceed either summarily or by indictment. The majority of Criminal Code offences are hybrid.

Judicial Case Manager

A JP who controls the calendar for the court and sets trial dates.

Justice of the Peace (JP)

A person appointed by the government to conduct certain tasks in court (like initial appearances), fix trial dates, and hear bail applications.

Indictable Offence

A more serious criminal offence where the maximum sentence could be life imprisonment. There is no time limit to when charges can be laid (e.g., an accused can be charged 20 years after an act has occurred). The exception to this point is treason, which has a 3-year limitation period.

Information

The document which sets out the specific offences the accused is charged with.

Initial Appearance(s)

An appearance before a JP or Judge where the accused can decide how to proceed. There can be multiple initial appearances.

Initial Sentencing Position

The sentence Crown would seek if the accused were to plead guilty and not go to trial.

Insufficient Evidence Motion

A motion made by defence at trial claiming Crown has not proven the case beyond a reasonable doubt.

K-File

A file where the accused and complainant are family members. The most common is spousal assault.

Mens Rea

An essential (mental) element of the criminal offence (an intention to commit the crime).

No Evidence Motion

When the Crown has presented the case against you, if you feel that they have failed to prove all the things that had to be proved, you can make a no-evidence motion. This means that you are asking the judge to dismiss the case, without hearing the defence evidence.

Particulars

The disclosure package provided to the accused by the Crown containing all of the relevant evidence in the Crown’s case against the accused.

Preliminary Inquiry

A hearing held in provincial court to determine if there is enough evidence to move forward to the trial in Supreme Court. The Preliminary Inquiry is available to all accused persons charged with offences that proceed by way of indictment. A preliminary inquiry is a hearing to determine whether there is sufficient evidence to proceed to trial. A preliminary inquiry is not a trial.

Pre-Sentence Report

A report that can be ordered by a judge after a guilty plea has been entered and prior to sentencing in order to recommend an appropriate sentence for the accused.

Report to Crown Counsel

Summary of the police narrative and any witness statements taken with respect to the case.

Sentence

What punishment the judge decides the accused should be subject to when found guilty.

Summary Conviction Offence

A less serious offence where the maximum jail term is usually 6 months and maximum fine is $5,000.

Summons

A written order by a judge or JP requiring the accused to attend court at a certain date and time.

The Bar of the Court

The partition in the courtroom between where the lawyers sit and where the general public sits.

Vacating a Warrant

In order to vacate a bench warrant, the client will need to appear before a judge and apply to be re-released on bail.

Verdict

After the trial, the judge returns a finding of guilty or not guilty.

Voir Dire

An in-trial hearing that is considered a separate hearing from the trial itself. It is known as a "trial within a trial" and is designed to determine an issue separate from the procedure or admissibility of evidence.

Witness

Anyone called to give evidence at a trial.

@@ Line 1: / Line 1: @@
-{{REVIEWEDPLS | reviewer = [https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/justice-services/maintenance-enforcement-locate-services Maintenance Enforcement & Locate Services], Ministry of Attorney General|date= March 2018}} {{Dial-A-Law TOC|expanded = divorce}}
+{{REVIEWED LSLAP | date= August 4, 2021}}
-Unfortunately, some parties who owe child support or spousal support fail to make their payments. Learn the steps to take to '''enforce payments owed under a support order or agreement'''.
+{{LSLAP Manual TOC|expanded = criminal}}
-==Understand your legal rights==
+'''Absolute Discharge'''
+*An accused pleads guilty or is found guilty but has no conditions or probation period imposed. There will be no conviction on the criminal record.
-===If spousal support or child support is not paid===
+'''Accused'''
-After a couple separates, one of the parties may pay '''spousal support''' to the other to help with living expenses. If they had children, one parent may pay '''child support''' to the other to help cover the expenses associated with raising the children.
+*The person whom the Crown charges with a criminal offence.
-Spousal support or child support payments can be set out in a court order or a separation agreement.
+'''Actus Reus'''
+*An essential element of the criminal offence; what the accused physically did to commit the crime.
-If the party who has to pay support does not do so, the money they owe is called “'''arrears'''” or “arrears of support”.
+'''Adjournment'''
+*A postponement; an accused or clinician can ask for this at an appearance if they need more time before deciding what to do about the charge.
-There are two ways a party who is entitled to support can collect arrears:
+'''Admission'''
-#they can take steps themselves to enforce the support order or agreement in court, or
+*A statement made by an accused to a civilian witness.
-#they can get help from a free government program, the Family Maintenance Enforcement Program.
-===Court orders differ from separation agreements===
+'''Agent'''
-A '''court order''' for the payment of support is a mandatory direction of the court. The party who is owed support can take steps to enforce a court order right away.
+*An appearance made by a person other than the accused acting on behalf of the accused.
-A '''separation agreement''', on the other hand, is a private contract between a couple who has separated. Like any contract, it can be enforced in the courts under the law of contracts. But it’s simpler to '''file''' the separation agreement in court. This allows the agreement to be enforced as if it was a court order.
+'''Alternative Measures'''
+*A program offered by Crown to divert the offender away from the criminal justice system. No guilty plea is made and charges are stayed. An acknowledgement of guilty and expression of remorse are required by the client.
-===Enforcement steps you can take on your own===
+'''Appeal'''
-If support payments are missed, the person owed support has several options to enforce payment. Where you have a support order or a separation agreement filed in court, you can (among other steps):
+*Formally contesting the verdict or sentence.
-*Apply to '''garnish the wages''' of the person who owes support. This means their employer must send a portion of their wages to the court (up to 50%). That money can then be paid to you to cover the support arrears.
-*Apply for an order that some of their '''property be sold''' to pay the arrears.
-*Apply for an order to '''seize''' (take money from) certain kinds of bank accounts and retirement savings accounts.
-There are also a number of ways you can force the other party to provide information about their finances. Doing so can help you figure out how to best collect the arrears. For example, you can require the other party to:
+'''Appearance Notice'''
-*Attend a '''default hearing'''. This is a court hearing where the other party will be required to produce a statement of their finances.
+*A notice provided by a police officer requiring the accused to attend court at a certain date and time.
-*Attend an '''examination hearing'''. This is a court hearing where you can question the other party under oath about their finances.
-For any of these steps, you must apply to court and explain to a judge why they should grant the order you are requesting. The process of applying to court can be complicated. It’s a good idea to speak with a lawyer first.
+'''Arraignment Hearing'''
+*A hearing in front of a Judge or JP where the accused decides whether to plead guilty or go to trial.
-===How the Family Maintenance Enforcement Program works===
+'''Bail'''
-The '''Family Maintenance Enforcement Program''' (FMEP) is a free service provided by the provincial government. The program enforces support orders and agreements on behalf of the person who is owed support.
+*Refers to the release (or detention) of a person charged with a criminal offence prior to a trial or guilty plea.
-====Enrolling in the program====
+'''Bail Conditions'''
-Anyone with a support order or separation agreement filed in court can enroll in the Family Maintenance Enforcement Program. The application form is available online at [http://www.fmep.gov.bc.ca/ fmep.gov.bc.ca]. You can also call the program at 604-678-5670 in the Lower Mainland, 250-220-4040 in Greater Victoria, or 250-434-6020 in Northern and Interior BC.
+*Release conditions imposed on an accused that they must abide by in order to be released from custody prior to trial or plea.
-====On being enrolled in the program====
+'''Bench Warrant'''
-Once someone is enrolled in the Family Maintenance Enforcement Program, all support payments must be sent to the program. The program processes the payments and sends them on to the person owed support. The program tracks when payments are due, and when and how much gets paid. If payments are missed and arrears accumulate, there are several steps the program can take, explained shortly.
+*A bench warrant is an order issued by a judge requesting the detention of a person until they can appear in court. Such an order is often issued because a defendant did not appear in court.
-====Default fee====
+'''Complainant'''
-Whenever a person who owes support misses or is late with two payments within the same calendar year, the program will automatically charge them a '''default fee'''. The fee goes to the BC government, not to the support recipient, to help the government cover the costs of operating the program.
+*The person who usually makes the report to the police about having been the victim of a crime.
-===Steps the Family Maintenance Enforcement Program can take===
+'''Conditional Discharge'''
-To enforce a support order or agreement, the Family Maintenance Enforcement Program can take all legal steps the support recipient could take on their own. The program can also take other steps the recipient cannot, like restricting the driver’s licence of the person who owes support (the “payor”) or taking away their passport.
+* A period of probation imposed on an accused where after the period is complete, no convictions will appear on a criminal record.
-If support payments are missed and arrears are owed, the enforcement steps the program takes depend on how much arrears are owed, the current situation of the payor, and the actions the program thinks have the best chance of success in the circumstances.
+'''Conditional Sentence'''
+*A conditional sentence is a jail sentence that you serve in the community instead of jail. Judges will use a conditional sentence only if they are satisfied that you won’t be a danger to the community and do not have a history of failing to obey court orders.
-====Garnishment====
+'''Confession'''
-If a support payment isn’t made, the program can intercept a portion of the wages owed to the payor, to cover the support owed.
+*A statement of guilt made to a police officer or another person in authority.
-====Notice of attachment====
+'''Cross-Examination'''
-The program can issue a '''notice of attachment''' against any person or institution that owes money to the payor. The notice requires that money owed to the payor be redirected to the program (and then sent to the recipient). Institutions that can be attached include employers, banks, and WorkSafeBC. Payments from the federal government, like income tax refunds and Employment Insurance benefits, can also be attached.
+*The interrogation (leading questions) of a witness called by the other side.
-====Lien against property====
+'''Crown Counsel'''
-The program can file the support order against any property owned by the payor. Doing so means the property cannot be sold or re-mortgaged without the support arrears being dealt with first.
+*Lawyers appointed by the government who prosecute criminal cases.
-====Restricting the payor’s passport or driver’s licence====
+'''Custodial Sentence'''
-When a payor has fallen $3,000 or more behind in support payments and all attempts to collect the support in other ways have been unsuccessful, the program can advise the federal government to suspend or deny a payor’s '''passport'''. It can also instruct ICBC to refuse to renew a payor’s '''driver’s licence'''.
+*A sentence served in jail.
-====Court enforcement====
+'''Detention'''
-Ultimately, if the payor still doesn’t pay, the Family Maintenance Enforcement Program can bring the case to court. In court, the payor will be required to explain to the judge why payments are in arrears, and the judge can decide to take additional action to enforce payment of the arrears — including putting the payor in jail.
+*A suspension of an individual’s liberty by physical or psychological restraint.
-==Common questions==
+'''Direct Examination'''
+*Where the defence or Crown questions its own witnesses.
-===How successful is the Family Maintenance Enforcement Program in collecting arrears?===
+'''Disposition'''
-In the vast majority of cases, support recipients enrolled in the Family Maintenance Enforcement Program receive some or all of the support that is due each year. However, some payors make it very difficult for the program to collect — even going to the extent of leaving the country to avoid paying support. Others may have no income or assets, or may be receiving income assistance, which means it can take a long time to collect what is owed to recipients. But the Family Maintenance Enforcement Program will continue to pursue payments as long as the support recipient is enrolled with them.
+*If a matter in court is “for disposition,” this means there will be a guilty plea instead of a full trial.
-===How quickly should I act?===
+'''Duty Counsel'''
-It is always a good idea to be proactive and enroll in the Family Maintenance Enforcement Program if there are problems around support payments. If you are owed support and the party owing you support misses a payment, you should enroll immediately.
+*Lawyers paid by the government who work in the court house and advise accused with basic legal information and basic court appearances.
-===Can I take steps on my own while I’m enrolled with the Family Maintenance Enforcement Program?===
+'''Election'''
-If you are enrolled with the program, you must contact the program to get permission before taking enforcement action on your own.
+*For indictable offences, where the accused can decide whether to have their case tried in Provincial Court or Supreme Court (and with or without a jury).
-==Get help==
+'''''Ex Parte'''''
+*Proceeding without the accused present.
-===With more information===
+'''Hearsay'''
-For more information about the '''Family Maintenance Enforcement Program''', visit their website at [http://www.fmep.gov.bc.ca/ fmep.gov.bc.ca]. Or call 604-678-5670 in the Lower Mainland, 250-220-4040 in Victoria, or toll-free 1-800-663-3455 elsewhere in BC.
+*Evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them.
-The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, has information on [http://wiki.clicklaw.bc.ca/index.php/Child_Support_Arrears arrears of child support] and [http://wiki.clicklaw.bc.ca/index.php/Spousal_Support_Arrears arrears of spousal support].
+'''Hybrid Offence'''
+*An offence where the Crown can choose to proceed either summarily or by indictment. The majority of ''Criminal Code'' offences are hybrid.
-{{Dial-A-Law_Navbox|type=families}}
+'''Judicial Case Manager'''
-{{Dial-A-Law Copyright}}
+*A JP who controls the calendar for the court and sets trial dates.
+'''Justice of the Peace (JP)'''
+*A person appointed by the government to conduct certain tasks in court (like initial appearances), fix trial dates, and hear bail applications.
+'''Indictable Offence'''
+* A more serious criminal offence where the maximum sentence could be life imprisonment. There is no time limit to when charges can be laid (e.g., an accused can be charged 20 years after an act has occurred). The exception to this point is treason, which has a 3-year limitation period.
+'''Information'''
+*The document which sets out the specific offences the accused is charged with.
+'''Initial Appearance(s)'''
+*An appearance before a JP or Judge where the accused can decide how to proceed. There can be multiple initial appearances.
+'''Initial Sentencing Position'''
+*The sentence Crown would seek if the accused were to plead guilty and not go to trial.
+'''Insufficient Evidence Motion'''
+*A motion made by defence at trial claiming Crown has not proven the case beyond a reasonable doubt.
+'''K-File'''
+*A file where the accused and complainant are family members. The most common is spousal assault.
+'''Mens Rea'''
+*An essential (mental) element of the criminal offence (an intention to commit the crime).
+'''No Evidence Motion'''
+*When the Crown has presented the case against you, if you feel that they have failed to prove all the things that had to be proved, you can make a no-evidence motion. This means that you are asking the judge to dismiss the case, without hearing the defence evidence.
+'''Particulars'''
+*The disclosure package provided to the accused by the Crown containing all of the relevant evidence in the Crown’s case against the accused.
+'''Preliminary Inquiry'''
+*A hearing held in provincial court to determine if there is enough evidence to move forward to the trial in Supreme Court. The Preliminary Inquiry is available to all accused persons charged with offences that proceed by way of indictment.  A preliminary inquiry is a hearing to determine whether there is sufficient evidence to proceed to trial. A preliminary inquiry is not a trial.
+'''Pre-Sentence Report'''
+*A report that can be ordered by a judge after a guilty plea has been entered and prior to sentencing in order to recommend an appropriate sentence for the accused.
+'''Report to Crown Counsel'''
+*Summary of the police narrative and any witness statements taken with respect to the case.
+'''Sentence'''
+*What punishment the judge decides the accused should be subject to when found guilty.
+'''Summary Conviction Offence'''
+*A less serious offence where the maximum jail term is usually 6 months and maximum fine is $5,000.
+'''Summons'''
+*A written order by a judge or JP requiring the accused to attend court at a certain date and time.
+'''The Bar of the Court'''
+*The partition in the courtroom between where the lawyers sit and where the general public sits.
+'''Vacating a Warrant'''
+*In order to vacate a bench warrant, the client will need to appear before a judge and apply to be re-released on bail.
+'''Verdict'''
+*After the trial, the judge returns a finding of guilty or not guilty.
+'''Voir Dire'''
+*An in-trial hearing that is considered a separate hearing from the trial itself. It is known as a "trial within a trial" and is designed to determine an issue separate from the procedure or admissibility of evidence.
+'''Witness'''
+*Anyone called to give evidence at a trial.

Difference between pages "Enforcing Support Orders and Agreements" and "Criminal Law Glossary (1:App F)"

Revision as of 22:55, 30 August 2021

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