Introduction to the Legal System for Family Matters
This chapter looks at the three key components of the traditional legal system: the law, the courts, and the people involved in the court process. In a legal dispute, the parties present their competing claims to the court, and the judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. who hears the case applies the law to the facts and makes a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." that resolves the dispute.
The chapter begins with a brief overview of the basic elements of our legal system and how they work together. The following sections discuss the legal system in more detail, covering the court system, the law, and the lawyer-client relationship.
When some couples separate, they just separate and it's over and done with. For other couples, separation raises a bunch of practical and legal problems. If a couple has children, they'll have to decide where the children will mostly live, how they will make parenting decisions, how much time each parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." will have with the children, and how much child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. should be paid. If one person is financially dependent on the other, they may have to decide whether spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. should be paid. If the couple has propertySomething which can be owned. See "chattels" and "real property.", they'll have to decide who should keep what.
When a couple has problems like these, they also have to decide how they'll resolve them. In other words, they need to pick the legal process they'll use to figure everything out and get to a resolution. Some couples just talk it out. Others go to a trusted friend, family member, elder or community leader for help. Others use a mediator to help them find a solution. Others go to court.
In its narrowest sense, the legal system refers to the parties, the judges, the court staff and the lawyers that make up the litigation process, and of course the laws and rules that guide that process. To resolve a legal dispute without going to court, you can negotiate a settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer." or you can ask someone other than a judge to decide what should happen. In its broader sense, the legal system also refers to dispute resolutionA phrase referring to a family of processes used for resolving legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. options such as negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute, usually consisting of mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements.", mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.", collaborative settlement processesA dispute resolution process in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution.", and arbitrationA dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award which resolves the dispute and which is binding on the parties. See "alternative dispute resolution" and "family law arbitrator.". You can find out about these alternatives to going to court in the chapter Resolving Family Law Problems out of Court.
Choosing the right process
Many people see court as their first and only choice. That might be true if your landlord is trying to evict you unfairly, if your business partner has broken a deal, if you've had a car accident and ICBC won't pay, or if you're suing some huge corporation. It is certainly not true for family law problems.
Deciding not to litigate
You could, for example, sit down over a cup of coffee and simply talk about the problem. You could hire a family law mediatorA lawyer or another person with special training in the mediation of family law disputes who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "mediation." to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." to negotiate a solution for you, or you could let the lawyer assist you as you work through the mediation process. There's also collaborative law, a kind of negotiation process in which you and your ex each have your own lawyer and your own divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." coach, and you agree to work through your problems without ever going to court. Then there's arbitration, in which you both choose the rules that will guide the process and pick the family law arbitratorA lawyer or another person with special training in the arbitration of family law disputes who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "arbitration." you want to serve as your own personal judge.
In almost all cases, negotiation and mediation, and even arbitration, are better choices than litigation. They all cost a lot less than litigation, they offer you the best chance of getting to a solution that you're both happy with, and they give you the best chance of maintaining a civil relationship with your ex after the dust has settled. Whatever you do, it's very important that you get legal advice from a lawyer in your area since most laws change from province to province.
Despite the obvious benefits of avoiding litigation, most people still go to court when they have the problem. Why? Usually because they are angry, sometimes because they want revenge. Sometimes they go to court because they see a bigger threat to their personal and financial well-being than really exists; sometimes it's because they can't trust their ex any more and simply don't know what to do next. Sometimes, it's because they are emotionally immature and can't get through their anger to return to a more rational, common sense point of view.
Today, the legal system isn't just about judges and courts, lawyers and the law. It also includes negotiation, collaborative processes, mediation, and arbitration. If you have a family law problem, litigation isn't your only choice. You have options.
When litigation makes sense
Sometimes litigation is your smartest choice; sometimes there's just no other option.
You'll need to start a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. if you've tried to resolve things out of court but can't reach a final agreement. For some people, prolonging the conflict is a way of continuing a relationship past separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of."; others are afraid to commit to a final agreement for fear of an uncertain future. Still others refuse to accept anything less than their best-case outcome and don't see the financial and emotional benefits of settlement.
If your ex has started a court proceeding, on the other hand, you'll have to participate in the litigation or you risk the court making an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.". Most family law proceedings in the Supreme Court resolve without a trial; many Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." proceedings also settle short of trial. Settlement can still be reached even though a court proceeding has started.
Even if litigation isn't underway or may not be required to resolve your dispute, you may want to start a court proceeding if:
- there's a history of violence or abuse in your relationship,
- you or your children need to be protected from your ex,
- your ex is threatening to do something drastic like take the children, hide property or rack up debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.,
- your ex is refusing to disclose financial or other information,
- your ex is refusing to provide support and you need financial help, or
- you need to demonstrate that you're serious about moving things forward toward a resolution.
When lawyers talk about the law they're talking about two kinds of law, laws made by the government and the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts. The system of justice used in non-criminal cases in all provinces and territories except Quebec..
Laws made by the government are called legislationAn act; a statute; a written law made by a government. See "regulations.". Important legislation for family law includes the Divorce Act, a law made by the federal government, and the Family Law Act, a law made by the provincial government. The government can also make regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say as to what sort of regulations are imposed or input into the effect of those regulations. See "act." for a particular piece of legislation which might contain important additional rules or say how the legislation is to be interpreted. The most important regulation in family law is the Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved., a regulation to the Divorce Act.
The common law is all of the legal rules and principles that haven't been created by the government. The common law has been developed by the court since the modern court system was established several hundreds of years ago.
Legislated laws are the rules that govern our day-to-day lives. The federal and provincial governments both have the authority to make legislation, like the provincial Motor Vehicle Act, which says how fast you can go and that you need to have a licence and insurance to drive a car, or the federal Criminal Code, which says that it's an offence to stalk someone, to steal or to shout "fire" in a crowded theatre.
Because of the Constitution of Canada, each level of government can only make legislation on certain subjects, and normally the sorts of things one level of government can make rules about can't be regulated by the other level of government. For example, only the federal government can make laws about divorce, and only the provincial government can make laws about property.
The common law
One of the court's more important jobs is to interpret and apply legislated laws. For example, the Divorce Act says this about orders for accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody.":
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." with each spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." as is consistent with the best interests of the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.".
The court has had to decide what "as is consistent with the best interests of the child" means when applying this section.
Unlike the laws made by governments, which are written down and organized, the common law is more of a series of principles and legal concepts which guide the courts in their process and in their consideration of each caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.". These ideas are not organized in a code or regulation. They are found in case lawThe law as is established and developed by the decisions made in each court proceeding. See "common law.", judges' written explanations of why they have decided a particular case a particular way.
The common law provides direction and guidance on a wide variety of issues, such as how to understand legislation, the proper interpretation of contracts, the test to be applied to determine whether someone has been negligent, and what kinds of information can be admitted as evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." at trial. However, unlike legislated laws, the common law doesn't usually apply to our day-to-day lives in the sense of imposing rules that say how fast we can drive in a school zone or whether punching someone is a criminal offence. It usually applies when we have to go to court.
The fundamental purpose of the courts is to resolve legal disputes in a fair and impartial manner. The courts deal with all manner of legal disputes, from the government's claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. that someone has committed a crime, to a property owner's claim that someone has trespassed on their property, to a shareholder's grievance against a company, to an employee's claim of wrongful dismissal.
No matter what the nature of the dispute is, the judge who hears the dispute must give each partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." the chance to tell their story and give a complete answerA response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply.". The judge must listen to each party without bias, and make a fair determination, resolving the dispute based on the facts and the laws, including the legislated laws and the common law that might apply to the dispute.
The courts of British Columbia
There are three levels of court in this province: the Provincial Court of British Columbia, the Supreme Court of British Columbia, and the Court of AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal." for British Columbia. Each level of court is superior to the one below it. A decision of the Provincial Court can be challenged before the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.", and a decision of the Supreme Court can be challenged before the Court of Appeal.
The Provincial Court
There are four divisions of the Provincial Court: Criminal and Youth Court, which mostly deals with charges under the Criminal Code; Small Claims Court, which deals with claims about contracts, services, property and debt; Traffic and Bylaw Court, which deals traffic tickets and provincial and municipal offences; and Family Court, which deals with certain claims under the Family Law Act.
The jurisdictionWith respect to judges, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution." of the Provincial Court is fairly narrow. It can only deal with the subjects assigned to it by the provincial government. Unless the government has expressly authorized the Provincial Court to deal with an issue, the Provincial Court cannot hear the case. For example, Small Claims Court can only handle claims up to $25,000, and Family Court cannot deal with claims involving family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." or family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship and after separation, if used to maintain family property. Both spouses are presumed to be equally liable for family debt., or claims under the Divorce Act. Each branch of the Provincial Court has its own set of procedural rules and its own court forms.
The Supreme Court
The Supreme Court can deal with any claim and there is no limit to the court's authority, except for the limits set out in the court's procedural rules and in the constitutionThe rules that set out the political and legal organization of a state. The power and authority of the governments and the courts, as well as their limits, stem from the constitution. In Canada, there are two primary constitutional documents, the ''Constitution Act, 1867'' and the ''Constitution Act, 1982''. The ''Charter of Rights and Freedoms'' is part of the ''''Constitution Act, 1982''.. There are three kinds of judicial official in the Supreme Court: justices, masters, and registrars. Justices and masters deal with most family law problems.
There are two sets of rules in the Supreme Court: the Supreme Court Family Rules, which apply just to family law disputes, and the Supreme Court Civil Rules, which apply to all other non-criminal matters. Each set of rules has its own court forms.
The Supreme Court is a trial court, like the Provincial Court, and an appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. court. The Supreme Court hears appeals from Provincial Court decisions, and justices of the Supreme Court hear appeals from masters' decisions.
The Court of Appeal
The Court of Appeal is the highest court in British Columbia and hears appeals from Supreme Court decisions; the Court of Appeal does not hear trials. The Court of Appeal has its own set of procedural rules and its own court forms.
The Federal Courts
The Federal Court of Canada is a second court system that is parallel to the courts of British Columbia and the other provinces and territories. The Federal Court and Federal Court of Appeal only hear certain kinds of disputes, including immigration matters and tax problems.
The federal courts also deal with Divorce Act claims in those rare cases when each spouse has started a separate court proceeding for divorce on the same day but in different provinces.
The Supreme Court of Canada
The highest level of court in the country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provinces' courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with hearing appeals.
Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to.
A handy chart
This chart shows the structure of our courts. The lowest level of court in British Columbia are the provincial courts, the highest is the Court of Appeal for British Columbia; these courts are shown on the right. The highest court in the land, common to all provinces and territories is the Supreme Court of Canada, at the top.
All court processes start and end more or less the same way. You must file a particular form in court and serve the filed document on the other party. After being served, the other party has a certain number of days to file a replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut.". If the other party replies there is a hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence.". If the other party doesn't reply and you can prove that he or she was served, you can ask for a judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." in defaultIn law, failing to do something which is either optional or mandatory, such as failing to respond to an application or to a claim within the time limits set out in the rules of court. See "default judgment. ". That's about it.
In the Provincial Court, you can start a court proceeding by filing an Application to Obtain an OrderA legal document required by the Provincial Court Family Rules to bring a court proceeding, which sets out the relief sought by the applicant against the person named as respondent. See "action," "applicant," "pleadings," "relief," and "respondent.". The other party has 30 days after being served to file a ReplyA legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim," and "Counterclaim.".
In the Supreme Court, court proceedings are started by filing a Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief.", and sometimes by filing a PetitionA court form required by the Supreme Court Family Rules used to commence court proceedings that can be dealt with in the manner of an application, without the need for a protracted process of disclosure and discovery. See "action," "application," "disclosure" and "discovery.". A person served with a Notice of Family Claim has 30 days to file a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out his or her reply to the claimant's claim and the grounds for his or her reply. See "action," claim," "Notice of Family Claim" and "pleadings." and possibly a CounterclaimA legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim.", a claim against the person who started the court proceeding. A person served with a Petition has 21 days to file a Response to Petition, if served in Canada, 35 days if served in the United States of America, and 49 days if served anywhere else.
Eventually, there will be a hearing, a trial, or an application for default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim." in the Provincial Court or the Supreme Court that will result in a final order that puts an end to the dispute.
In most family law proceedings, things rarely go from starting the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." straight to trial. Along the way you will likely have to:
- attend a judicial case conference, if you're in the Supreme Court, or a family case conference, if you're in the Provincial Court,
- produce financial documents and other documents that are important,
- attend an examination for discoveryThe cross-examination of a party under oath or affirmation about the matters at issue in a court proceeding conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, in certain circumstances, be used at trial. See "discovery.", if you're in the Supreme Court, and
- make or reply to one or more interim applications.
An interim applicationAn application, also called in "interlocutory application," made after the start of a court proceeding but before its conclusion, usually for temporary relief pending the final resolution of the proceeding at trial or by settlement. In family law, interim applications are useful to determine issues like where the children will live, who will pay child support and whether spousal support should be paid on a rough and ready basis. See "application" and "interim order." is an application to the court before trial for a temporary order, called an interim orderAny order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final order. See "application" and "interim application.". Interim applications and these other processes are all discussed elsewhere in this resource, such as the section on Interim Applications in Family Matters in the chapter Resolving Family Law Problems in Court.
If either party is unhappy with the result of the hearing or trial and can show that the judge made a mistake, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of the Supreme Court are appealed to the Court of Appeal.
You start an appeal by filing a Notice of AppealA legal document required by the rules of court which is used to give notice of a party's intention to appeal a decision. See "appeal" and "decision.", or, depending on the circumstances, a Notice of ApplicationA legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief." for Leave to Appeal, and serving the filed document on the other party, usually within 30 days of the date of the final order. The other party has a certain amount of time to file a Notice of Appearance in the Court of Appeal or a Notice of Interest for appeals from the Provincial Court to the Supreme Court.
Eventually, there will be a hearing that will result in a final order that puts an end to the appeal. Appeals heard by the Supreme Court can be appealed to the Court of Appeal, and appeals heard by the Court of Appeal can be heard by the Supreme Court of Canada, but only if that court gives permission.
A trial is the presentation and testing of a legal claim before a judge with the authority to decide the claim. A claim might be that someone has been negligent, which caused harm to the person making the claim, or it might be that one spouse should pay spousal support to the other spouse. A claim is "tested" in the sense that the judge's job is to see whether the evidence and the law support the claim.
Evidence at trial is almost always given by witnesses and through documents like bank records, income tax returns and photographs; in rare cases, the evidence of a witnessA person with person knowledge of things; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence." can also be given by an affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.".
The person who started the court proceeding will go first and presents his or her evidence. The other party goes next and presents the evidence supporting his or her side of the case. When all of the evidence has been presented to the judge, each party tells the judge why the facts and the law show that the judge should decide the case in their favour.
In every case that goes to trial — and, to be clear, not every case does — the judge who hears the case must first make a decision about what the facts of the case are after he or she has listened to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding of factA judge’s conclusion about the facts in a court proceeding, made after hearing all the evidence. See "decision" and "question of fact."." The judge then reviews the law and the rules and legal principles that might apply, and decides what law applies to the legal issues. This is called making a "finding of lawA judge’s conclusion about the law to be applied to the facts in a court proceeding, or how the law should be applied to the facts in a proceeding, made after hearing the parties' arguments on the applicable law. See "decision" and "question of law."." The judge makes a decision about the legal claim by applying the law to the facts.
Sometimes the judge is able to make a decision after hearing all the evidence and parties' arguments. Most of the time, however, the judge will need to think about the evidence and the law before he or she can make a decision. This is called a "reserved judgment."
The decision of the judge at the trial can be challenged to a higher court. A decision of the Provincial Court is appealed to the Supreme Court, and a decision of the Supreme Court is appealed to the Court of Appeal. Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada, but only if the court agrees to hear the appeal.
An appeal is not a chance to have a new trial, introduce new evidence or call additional witnesses. You don't get to appeal a decision just because you're unhappy with how things turned out. Appeals generally only concern whether the judge used the right law and applied the law correctly. This is what the Court of Appeal said about the nature of appeals in the 2011 case of Basic v. Strata Plan LMS 0304, 2011 BCCA 231:
"Consideration of this appeal must start, as all appeals do, recalling that the role of this court is not that of a trial court. Rather, our task is to determine whether the judge made an error of lawA ground of appeal based on a claim that the trial judge did not apply the law correctly in reaching his or her decision. This is the most common ground of appeal. See "appeal.", found facts based on a misapprehension of the evidence, or found facts that are not supported by evidence. Even where there is such an error of fact, we will only interfere with the order if the error of fact is materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." to the outcome."
An appeal court does not hear new evidence or make decisions about the facts of a case; the appeal court will accept the trial judge's findings of fact. If the appeal court is satisfied that the trial made a mistake about the law, however, the appeal may succeed.
Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three or five judges. At the hearing, the person who started the appeal will go first and will explain why the trial judge made a mistake about the law. The other party goes next and explains why the trial judge appropriately considered the applicable legal principles and why the judge was right. Sometimes the court is able to make a decision after hearing from each party.
The How Do I? part of this resource has details about the procedures for making an appeal, under the heading Appealing a Decision. You may want to look at these topics:
- How Do I Appeal a Provincial Court Decision?,
- How Do I Appeal an Interim Supreme Court Decision?,
- How Do I Appeal a Supreme Court Decision?, and
- How Do I Appeal a Court of Appeal Decision?
There is no rule that says that you must have a lawyer represent you in court. Although a court proceeding can be complicated to manage and the rules of courtThe guidelines governing the court process and the conduct of litigation generally. The rules of court are particular to each level of court. can be confusing, you have the right to represent yourself.
If you do decide to represent yourself in a court proceeding, you have a responsibility to the other parties and to the court to have a general understanding of the law that applies to your proceeding and of the procedural rules that govern common litigation processes like document disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. and discoveryA step in a court proceeding in which a party is entitled to demand that the other produce requested documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination for discovery." and common court processes like making interim applications.
A good start would be to read through the other sections in this chapter, covering the court system, the law, and the role of lawyers, as well as the chapter on Resolving Family Law Problems in Court. You might also want to read a short note I've written for people who are representing themselves in a court proceeding, "The Rights and Responsibilities of the Self-Represented Litigant" (PDF).
To find out what to expect in the courtroom, read How Do I Conduct Myself in Court at an Application? It's located in the How Do I? part of this resource, in the section Courtroom Protocol.
Sometimes people begin a court actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. with a lawyer, and then start to represent themselves. If you do this, you need to notify the other parties and the court of the change. See How Do I Tell Everyone That I'm Representing Myself? It's located in the How Do I? part of this resource, in the section Other Litigation Issues.
|The above was last reviewed for legal accuracy by JP Boyd, March 24, 2013.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|