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Difference between revisions of "Understanding the Legal System for Family Law Matters"

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Understanding the Legal System for Family Law Matters (view source)

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==Court Processes==
==Court Processes==


All court processes start and end more or less the same way. You must file a particular form in court and serve on the other party. After being served, the other party has a certain number of days to file a reply. If the other party replies there is a hearing; if the other party doesn't reply and you can prove that he or she was served, you can ask for a judgment in default. That's about it.
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 reply. If the other party replies there is a hearing. If the other party doesn't reply and you can prove that he or she was served, you can ask for a judgment in default. That's about it.


In the Provincial Court, you can start a court proceeding by filing an ''Application to Obtain an Order''. The other party has 30 days after being served to file a ''Reply''.
In the Provincial Court, you can start a court proceeding by filing an ''Application to Obtain an Order''. The other party has 30 days after being served to file a ''Reply''.
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In the Supreme Court, court proceedings are started by filing a ''Notice of Family Claim'', and sometimes by filing a ''Petition''. A person served with a Notice of Family Claim has 30 days to file a ''Response to Family Claim'' and possibly a ''Counterclaim'', 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.
In the Supreme Court, court proceedings are started by filing a ''Notice of Family Claim'', and sometimes by filing a ''Petition''. A person served with a Notice of Family Claim has 30 days to file a ''Response to Family Claim'' and possibly a ''Counterclaim'', 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, trial or application for default judgment in the Provincial Court or the Supreme Court that will result in a final order that puts an end to the dispute.
Eventually, there will be a hearing, a trial, or an application for default judgment 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 proceeding straight to trial. Along the way you will likely have to:
In most family law proceedings, things rarely go from starting the proceeding straight to trial. Along the way you will likely have to:
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If either party is unhappy with the result of the hearing or trial and can show that the judge made a <span class="noglossary">mistake</span>, 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.
If either party is unhappy with the result of the hearing or trial and can show that the judge made a <span class="noglossary">mistake</span>, 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.


An appeal is started by filing a ''Notice of Appeal'', or, depending on the circumstances, a ''Notice of Application 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.  
You start an appeal by filing a ''Notice of Appeal'', or, depending on the circumstances, a ''Notice of Application 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 and 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.
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.


===Trial Basics===
===Trial Basics===


A trial is the testing of a legal claim before a judge with the authority to decide the issue. 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.
A trial is the testing of a legal claim before a judge with the authority to decide the issue. 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.


The person who started the court proceeding will go first and presents his or her evidence. 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 witness can also be given by an affidavit. 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 why the judge should decide the case as they think it should be decided.  
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 witness can also be given by an affidavit.


In every case that goes to trial, and, to be clear, not every case does, the judge who hears the case first makes a decision about the what the facts of the case are after listening to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding 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 law". The judge makes a decision about the legal claim by applying the law to the facts.
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.  


Sometimes the judge is able to make a decision after hearing all the evidence and party's arguments about why what they say should happen should happen. 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".
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 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 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 party's 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."


===Appeal Basics===
===Appeal Basics===
Gayla Reid
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