Clicklaw Wikibooks - User contributions [en]

Mark Norton

2019-11-21T21:38:11Z

Mark Norton:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | Legal System]] and another chapter relating to [[Overlapping Legal Issues and Family Law|Overlapping Legal Issues]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at [http://www.infinity-law.com Infinity Law] in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

| name = Mark Norton
| image = [[image:mnorton.png|150px|left|link=|Mark Norton]]
| organization = Infinity Law
| website = https://www.infinity-law.com/
}}

<noinclude>
[[Category:Contributor Bio|Norton]]
[[Category:JP Boyd on Family Law Contributors|Norton]]
</noinclude>

Mark Norton

2019-11-21T21:37:35Z

Mark Norton:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | Legal System]] and another chapter relating to [[Overlapping Legal Issues and Family Law|Overlapping Legal Issues]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at [www.infinity-law.com/ Infinity Law] in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

| name = Mark Norton
| image = [[image:mnorton.png|150px|left|link=|Mark Norton]]
| organization = Infinity Law
| website = https://www.infinity-law.com/
}}

<noinclude>
[[Category:Contributor Bio|Norton]]
[[Category:JP Boyd on Family Law Contributors|Norton]]
</noinclude>

Mark Norton

2019-11-21T21:37:11Z

Mark Norton:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | Legal System]] and another chapter relating to [[Overlapping Legal Issues and Family Law|Overlapping Legal Issues]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at [https://www.infinity-law.com/ Infinity Law] in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

| name = Mark Norton
| image = [[image:mnorton.png|150px|left|link=|Mark Norton]]
| organization = Infinity Law
| website = https://www.infinity-law.com/
}}

<noinclude>
[[Category:Contributor Bio|Norton]]
[[Category:JP Boyd on Family Law Contributors|Norton]]
</noinclude>

Mark Norton

2019-11-21T21:36:01Z

Mark Norton:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | Legal System]] and another chapter relating to [[Overlapping Legal Issues and Family Law|Overlapping Legal Issues]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at Infinity Law in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

| name = Mark Norton
| image = [[image:mnorton.png|150px|left|link=|Mark Norton]]
| organization = Infinity Law
| website = https://www.infinity-law.com/
}}

<noinclude>
[[Category:Contributor Bio|Norton]]
[[Category:JP Boyd on Family Law Contributors|Norton]]
</noinclude>

Mark Norton

2019-11-21T21:35:45Z

Mark Norton:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | Legal System]] and another chapter relating to [[Overlapping Legal Issues and Family Law|Overlapping Legal Issues]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at Infinity Law in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

| name = Mark Norton
| image = [[image:mnorton.png|150px|left|link=|Mark Norton]]
| organization = Infinity Law
| website = www.infinity-law.com
}}

<noinclude>
[[Category:Contributor Bio|Norton]]
[[Category:JP Boyd on Family Law Contributors|Norton]]
</noinclude>

Mark Norton

2019-11-21T21:34:34Z

Mark Norton:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | Legal System]] and another chapter relating to [[Overlapping Legal Issues and Family Law|Overlapping Legal Issues]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at Infinity Law in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

| name = Mark Norton
| image = [[image:mnorton.png|150px|left|link=|Mark Norton]]
| organization = Infinity Law
| website = https://www.infinity-law.com/
}}

<noinclude>
[[Category:Contributor Bio|Norton]]
[[Category:JP Boyd on Family Law Contributors|Norton]]
</noinclude>

Wills and Estates Issues in Family Law

2019-06-24T16:08:51Z

Mark Norton: Change review date

{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' (''WESA''). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under ''WESA'', spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of ''WESA''. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of ''WESA'').

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of ''WESA''. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can't make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker's death, the benefit is cancelled.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/8mhj Wills, Estates and Succession Act]''

===Links===
* [http://www.clicklaw.bc.ca/question/commonquestion/1157 Clicklaw Common Question "I want to contest or dispute a will. What can I do?"]
* [http://www.clicklaw.bc.ca/question/commonquestion/1045 Clicklaw Common Question "My common-law partner died. What legal issues do I need to know about?"]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

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{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Conflict of Laws Issues in Family Law

2019-06-24T16:08:11Z

Mark Norton: Change last review date

{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

==Children==

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the ''Act''. The courts of British Columbia will hear an application for an order different than the original order as long as:

*either spouse normally lives in this province, or
*both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the ''Act'', and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

*the child normally lives in British Columbia, or
*the child is physically present in the province but will be at serious risk unless the original order is changed.

==Child support and spousal support==

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

===''Divorce Act'' orders===

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the ''Act''. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

===Other orders made outside British Columbia===

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Once this is done that newly "registered" order can be enforced as if it was a British Columbia order by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.

==Property and debt==

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Overlapping Legal Issues and Family Law

2019-06-24T15:49:51Z

Mark Norton: Update editors and date of last review

{{JPBOFL Start Chapter
| Related =
[[Naming and Changes of Name]]{{·}}[[Wills and Estates Issues in Family Law]]{{·}}[[Conflict of Laws]]
}}
{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Nate Russell]], [[Bob Mostar]] and [[Mark Norton]]
}}

Parenting arrangements, support payments, and the division of property are the everyday issues that crop up when a relationship breaks down. A whole host of other legal issues fall under the family law umbrella, however. And it's a big umbrella. For example, many financial, insurance, and tax planning issues arise when new relationships are formed or existing ones end. The ripples of family law unrest are drivers in business and shareholders agreements. Even the textbooks on animal law consider how pets are dealt with when spouses split up. And on it goes, deep into the legal debates and constitutional questions surrounding religious freedom and family law, which illustrate the historical connection between religion, families as a concept, and civil society. Most of this rich variety and overlap is not covered by this resource.

This chapter takes a look at a selection of relatively common legal questions that are also family law problems. It talks about issues affecting:

*your [[Naming and Changes of Name|legal rights relating to your name]], and when you can change your name (or change it back),
*the overlap between [[Wills and Estates Issues in Family Law|wills and estates law and family law]], and
*what happens [[Conflict of Laws Issues in Family Law|when laws from one place conflict with those of another]], such as when people and property are located in different legal jurisdictions.

Again, this is not a comprehensive list of all the overlapping issues someone with a family law problem might encounter.

==Resources and links==
===Resources===
* [https://www.clicklaw.bc.ca/helpmap/service/1009 Courthouse Libraries BC] operates 29 branches in courthouses around BC. All branches have public computers with legal databases essential for researching unique or overlapping legal issues, and the librarians staff a 1-800 number and an email service through which anyone in BC can ask a legal information question.

{{REVIEWED | reviewer = [[Mark Norton and Bob Mostar]], June 24, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

How Do I Change My Name after Marriage or Divorce?

2019-06-24T15:46:32Z

Mark Norton: Change to review

{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

Issues about names mostly come up when a child is born, when people enter into new relationships and when they separate, and, after separation, sometimes when someone wants to change the name of a child. In a family law context, people usually change their names when they marry and when they divorce. The provincial ''[http://canlii.ca/t/8481 Name Act]'' also allows people to change their names just because they feel like it, without the necessity of a marriage or a divorce.

This section provides a brief introduction to this subject and discusses the naming of children, changes of name on marriage and divorce, and changes of name under the ''Name Act''.

==Naming children==

The provincial Ministry of Health's [http://www.vs.gov.bc.ca Vital Statistics Agency] is the government organization that keeps track of people's births, their deaths, their wills, and their names. Under s. 3(1) of the ''[http://canlii.ca/t/84fk Vital Statistics Act]'', one or both of the parents must file a [http://www.vs.gov.bc.ca/forms/vsa404w_fill.pdf Registration of Live Birth] with the agency within 30 days of the birth of a child. This form must be completed before the child's birth certificate can be issued.

The form must state, among other things: the name of the mother; the name of the father (if known and acknowledged); the gender of the child; the date of birth; and, the name given to the child. Under s. 4 of the act, the child's surname can be:

*the name of either of the natural parents,
*the name of one of the parents,
*a combination of the parents' names, or
*another name entirely.

If one parent alone registers the birth with the agency, usually the mother, that parent has the final say on the child's name unless the father obtains a court order for a new surname.

A 2003 decision of the Supreme Court of Canada, ''[http://canlii.ca/t/1g6ph Trociuk v. British Columbia]'', 2003 1 S.C.R. 835, held that fathers should have a say in their children's names, contrary to the provisions of the ''Vital Statistics Act'' in force at the time. This decision also affects the right of unacknowledged fathers to be listed on their children's birth certificates. On June 4, 2004, the act was amended to comply with the court's decision, and s. 4.1 of the ''Vital Statistics Act'' now allows the courts of British Columbia to make an order changing a child's surname when it makes a declaration of paternity.

Now, while you're free to name your child as you wish, there are some limits. You've probably heard of Dweezel and Moon Unit Zappa, and you probably know people named Sunshine and Starlight. Under s. 9 of the ''Act'', the agency's chief executive officer has the authority to refuse to register the birth — and consequently to refuse to issue a birth certificate — for children whose names the chief executive officer believes:

<blockquote><tt>(a) might reasonably be expected to cause</tt></blockquote>
<blockquote><blockquote><tt>(i) mistake or confusion, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) embarrassment to the child or another person,</tt></blockquote></blockquote>
<blockquote><tt>(b) is sought for an improper purpose, or</tt></blockquote>
<blockquote><tt>(c) is, on any other ground, objectionable.</tt></blockquote>

While it seems that the chief executive officer rarely rejects a name, you should still be aware that this power exists.

==Changing names==

It is not illegal to use an ''alias'' in British Columbia, although you will not be allowed to obtain government identification or to make certain legal transactions, like the transfer of property, using an alias. An alias is a name other than your legal, registered name.

People often use aliases just because that's how people have come to know them, like a nickname, or because their real name is too hard for English-speakers to pronounce or spell easily. Most people who want to legally change their names do so because they were adopted, married, or divorced. Others do so for purely personal reasons. I remember reading a change of name notice for a fellow with the unfortunate name of Donald Duck.

You can apply to have a legal, registered name that differs from your birth or married name under the provincial ''Name Act''. This is a purely paper process and a hearing before a judge won't be necessary in most cases. Section 4 of the act sets out who may apply for a change of name:

<blockquote><tt>(1) Subject to this section, a person who has attained the age of majority or, if the age of majority has not been attained, is a parent having custody of his or her child and who is domiciled in British Columbia for at least 3 months, or has resided in British Columbia for at least 3 months immediately before the date of the application, may, unless prohibited by this or another Act, change his or her name on complying with this Act.</tt></blockquote>
<blockquote><tt>(2) If the minister is satisfied that it is in the public interest to do so, the minister may waive the residency requirements of subsection (1).</tt></blockquote>
<blockquote><tt>(3) Subject to subsection (4), a person who is the parent of and who has custody of an unmarried minor child may, with the consent of the other parent of the child, apply to change the child's name, but, if the application is to change the child's surname to that of the applicant's spouse, the consent of the spouse is required.</tt></blockquote>
<blockquote><tt>(4) If a person applies to change the name of an unmarried minor child who has attained the age of 12 years, he or she must first obtain the consent in writing of the child.</tt></blockquote>
<blockquote><tt>(5) If a person whose consent is required under this Act</tt></blockquote>
<blockquote><blockquote><tt>(a) is deceased or mentally disordered or cannot after reasonable, diligent and adequate search be located, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is, in the opinion of the director, unreasonably withholding his or her consent,</tt></blockquote></blockquote>
<blockquote><tt>the applicant may, with the approval of the director, proceed with the application without the consent of that person.</tt></blockquote>
<blockquote><tt>(6) If, in the opinion of the director, exceptional circumstances make it unreasonable to seek the consent of a person as required under this Act, the applicant may, with the approval of the director, proceed with the application without the consent of that person.</tt></blockquote>

When your name has been legally changed, the chief executive officer of the Ministry of Health Services' Vital Statistics Agency is required to make a notation on your birth certificate and on the registration of any current marriage. After the notation has been made, any future birth, marriage, or death certificates will show the new name. A Certificate of Change of Name will be issued that will allow you to obtain new identification, such as drivers' licences or BC Identification cards, in the new name.

===Change of name on marriage===

Many people change their names when they marry. Out of custom, wives often take their husbands' surnames, but there's no requirement that they do so, and there's nothing stopping a husband from taking his wife's surname. The options are wide open for same sex couples.

====Choice of name====

On marriage, s. 3 of the ''Name Act'' allows a spouse to:

<blockquote><tt>(a) use the surname he or she had immediately before the marriage,</tt></blockquote>
<blockquote><tt>(b) use the surname he or she had at birth or by adoption, or</tt></blockquote>
<blockquote><tt>(c) use the surname of his or her spouse by marriage.</tt></blockquote>

This applies to both men and women, and to same sex and opposite sex couples, and no court application is required; the newly-married spouse simply starts using that name. To get identification in the new name, you will have to produce proof of your marriage (the government-issued marriage certificate) and proof of your old name (a driver's licence or BC ID).

The sort of marriage the act is referring to is a legal marriage solemnized by a marriage commissioner or licensed religious official; the rules about change of name on marriage do not apply to common-law relationships.

====Hyphenated names====

The ''Name Act'' does not deal with situations where spouses wish to take each other's surnames and use a hyphenated name, like Smith-Jones. Spouses who want to adopt a hyphenated name as their legal name will have to follow the ''Name Act'' process for obtaining a change of name, described below, to make their new name their registered, legal name.

On the other hand, the new hyphenated name can be used as an alias, the day-to-day name by which most people know you, without a formal change of name. It is not illegal to go by an alias in British Columbia. Note, however, that if you do not apply to have the new name registered as your legal name, you cannot use the alias for legal transactions, such as the transfer of property or obtaining a loan.

===Change of name on divorce===

Once an order for divorce or an order declaring the marriage to be a nullity has been made, a former spouse may begin using any legal name they had before marriage. No court application is necessary. Where identification was obtained in the married name or assets were purchased in the married name, a legal change of name will be required.

====Orders for change of name====

Where a spouse needs a legal change of name, the spouse may seek an order to this effect in the divorce proceeding and simply claim the change of name as part of what they are asking for in the Notice of Family Claim or Counterclaim.

An application for a change of name can also be dealt with in a separate proceeding altogether, usually by Petition and likely without an oral hearing. An application for a change of both given and last names may be dealt with by a hearing before a judge.

====Children's names====

An application for a change of name of the children of the marriage must be made with the consent of the other parent, even when the person making the application has custody of the children. The consent of the affected children must also be obtained where they are 12 or more years old.

===Change of name under the ''Name Act''===

If you don't qualify for an automatic change of name, you will have to follow the process outlined in the ''Name Act'' to change your name. The Ministry of Health's [http://www.vs.gov.bc.ca/name/howto.html Vital Statistics Agency] has a [http://www.vs.gov.bc.ca/forms/vsa529.pdf change of name package] that includes all the forms you will require and instructions on how to complete them. Although you don't have to run an ad in the newspaper to change your name, you will have to get your fingerprints taken and submit to a criminal records check. As well, a fee will be charged by the police department that takes your fingerprints.

The process is fairly straightforward and a hearing before a judge is usually not necessary. The steps for most people are as follows:

#get the change of name package from the Vital Statistics Agency,
#if you're seeking to also change the name of a child, you must obtain the consents of the other parent, the child (if the child is 12 or more years old), and your present spouse (if you are seeking to change the child's name to that of your spouse),
#gather proof of identity, like birth certificates, for everyone affected by the change of name (usually, yourself and any children),
#go to your local police detachment and submit to fingerprinting (you have to pay a fee for this service),
#the police will send in all the required information — the identification, the consents, your fingerprints, and so forth — to the agency, along with payment of the agency's fee, and
#once your name change has been registered, the fingerprints will be returned to the police for a criminal records check.

Once the agency receives all of this information with their fee, they will begin processing the request. (Bear in mind that the agency's chief executive officer has the authority to refuse to register objectionable names. This is discussed earlier in this section.) If all is well, the chief executive officer will make the required changes to the birth certificates of the people affected by the application and, if applicable, to any current marriage certificate, and will issue a Certificate of Change of Name.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84fk Vital Statistics Act]''
* ''[http://canlii.ca/t/8481 Name Act]''

===Resources===

* [https://ebr.vs.gov.bc.ca/ Online Birth Registration]
* [http://www2.gov.bc.ca/assets/gov/health/forms/vital-statistics/vsa529.pdf Application for Change of Name]

===Links===

* [http://www2.gov.bc.ca/gov/content/life-events/ Vital Statistics Agency]
* [http://www2.gov.bc.ca/gov/content/life-events/legal-changes-of-name/legal-change-of-name-application Vital Statistics Agency: Legal Change of Name Application]
* [http://www.vs.gov.bc.ca/babynames/ Most Popular Baby Names in British Columbia]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

The Law for Family Matters

2019-06-24T15:45:09Z

Mark Norton: Update to date

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://familylaw.lss.bc.ca/resources/fact_sheets/choosing_court.php choosing Provincial or Supreme Court]
}}When lawyers speak about the law, they are really talking about two different things. The first kind of law is the laws made by the provincial and federal governments, called legislation. The other kind of law is the common law, which is the rules and principles developed by the courts as they decide case after case.

This section provides an overview of legislated laws, the common law, and the common law system of justice. It also talks about how to decide whether to begin a court proceeding under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]''.

==Introduction==

Under the [http://laws-lois.justice.gc.ca/eng/Const/index.html ''Constitution of Canada''], the federal and the provincial governments both have the power to make laws. Each level of government has its own particular area of jurisdiction, meaning that a subject that the federal government can pass laws on, the provincial governments generally can't, and vice versa. For example, the provinces have jurisdiction over property rights, so they can pass laws governing real estate, the sale of cars, the division of family property, and so forth. The federal government doesn't have the ability to make laws about property rights, except in certain special circumstances. On the other hand, the federal government can pass laws dealing with the military, navigation and shipping, and divorce, things that are outside the jurisdiction of the provincial governments. This distinction is important in family law because the laws of both the federal and provincial governments can relate to a problem, and you need to know which law governs what issue.

Legislated laws are only one source of law. Our constitution is another source of law, and another is the common law, also known as judge-made law. The fundamental principle of the common law is the idea that when a court has made a decision on a particular issue, another court facing a similar issue — with similar parties in similar circumstances — ought to make a similar decision. Courts are said to be "bound" by the decisions of earlier courts in previous cases. As no two cases are entirely alike, each court's decision is said to stand for a principle, a statement of what the law should be in the particular circumstances of that case. Sometimes this principle is an elaboration or a clarification of the general rule on a particular subject; sometimes it is a statement about what the law ought to be.

Our constitution requires that the courts be independent from the government. Despite this separation, the courts have a certain kind of authority over the government and the government has a certain kind of authority over the courts. For example, if the government passes a law that the court concludes is contrary to the constitution, the court can strike the legislation or make the government change it. On the other hand, the government has the authority to pass laws that change the common law rules made by the courts, although it can't change the court's decision in a particular case.

==The common law==

The common law of Canada is hundreds of years old and has its roots in England, in the ''curia regis'' established by King Henry II in 1178 and in the court of common pleas established by the Magna Carta in 1215, although really the oldest cases we are likely to refer to are from the 1800s. The common law is developed by the courts as they deal with each case, following a legal principle known by its Latin name, ''stare decisis''. Under this principle, a court dealing with a particular kind of problem is required, usually, to follow the decisions of previous courts that dealt with the same sort of problem in the same sort of circumstances. Court decisions are sometimes called "precedents" or "precedent decisions" because of the ''stare decisis'' principle.

Think of it like this. A long time ago, someone sued someone else for riding a horse onto his potato field without being invited. The court decided that you shouldn't be free to enter onto the property of another unless you were invited to do so, and found that the rider had ''trespassed''. Someone else riding a different horse onto a different field would be found liable for trespass based on the principle established by the first court. The first case was a precedent for the court's decision in the second case.

===The common law and government===

While the court is more or less free to develop the common law as it sees fit, the principles of the common law can be overridden by legislation made by the government. For example, the laws that deal with the interpretation and enforcement of contracts were at one point entirely governed by the common law. The government, as it decided it needed to regulate different aspects of the law of contracts, has made legislation covering lots of different areas of contract law, including such laws as the provincial ''Sale of Goods Act'' or the federal ''Advance Payments for Crops Act''. The new legislation overruled the old common law principles.

From a family law perspective, it used to be the case that a husband could sue someone else for "enticing" his wife to commit adultery or to leave him. Suing someone for enticement was a claim created by the courts. The ''[[Family Law Act]]'' now expressly forbids a spouse from bringing a court proceeding for enticement, thus overriding the common law rule. Other old common law claims abolished the ''Family Law Act'' include claims for breach of promise of marriage and loss of the benefits of marriage.

===The common law and legislation===

This leads to another important aspect of our legal system and the common law. The courts and the common law also play a role in interpreting laws made by the governments. Much of the case law in family law matters doesn't deal with ancient common law principles; it deals with how the courts have interpreted the legislation bearing on family law in the past. For example, [http://canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec15.2subsec4 s. 15.2(4)] of the ''[[Divorce Act]]'' says that in considering a claim for spousal support, the court must:

<blockquote><tt>
... take into consideration the condition, means, needs and other circumstances of each spouse, including 
(a) the length of time the spouses cohabited; 
(b) the functions performed by each spouse during cohabitation; and 
(c) any order, agreement or arrangement relating to support of either spouse. 
</tt></blockquote>

A lot of the case law that deals with spousal support is about how this particular section of the ''Divorce Act'' has been interpreted in past cases. A lawyer making an argument about why spousal support should be awarded to her client now might make an argument to the judge supported by case law showing how this section has been interpreted to award spousal support in the past to spouses in circumstances similar to those of her client.

===Finding case law===

Because the common law consists of the decisions of judges made over the past several hundred years, the common law is researched by looking at these decisions. These decisions are written down and printed in books. These books, depending on the publisher, are issued on a monthly, quarterly or annual basis. (When you see a promotional photograph of a lawyer standing in front of a giant rack of musty, leather-bound books, the lawyer is standing in front of these collections of the case law.) These books, called ''reporters'', are where the past decisions of the courts are available if you need to make an argument about how the law applies to your particular situation. The most important reporter for family law is called the ''Reports on Family Law'', or the RFL for short, published by Carswell. You can find collections of case law reporters in the library of your local courthouse or at a law school in your neighbourhood. These libraries are open to the public, although they may have restricted business hours.

Thankfully, these days almost every important decision is published online as well. This makes research a lot easier and saves a lot of time travelling to and from libraries. [http://canlii.org CanLII], the Canadian Legal Information Institute, has a collection of most cases published since 1990 and a growing number of older cases from all parts of Canada. There are video tutorials on using CanLII effectively, courtesy of [http://blog.canlii.org/2012/07/06/one-minute-legal-research-a-student-made-video-series/ CanLII's blog].

The courts also post case law on their respective websites. Search the judgments of:

*the [http://www.provincialcourt.bc.ca/judgments-decisions Provincial Court of British Columbia],
*the [https://www.bccourts.ca/search_judgments.aspx Supreme Court of British Columbia],
*the [https://www.bccourts.ca/search_judgments.aspx Court of Appeal for British Columbia], and
*the [http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Supreme Court of Canada].

These websites also keep lists of recently released decisions that may be published there before making it to CanLII.

Another way to look up case law is to read digests of the law on particular subjects. The best materials on family law are two books published by the Continuing Legal Education Society of British Columbia:the ''Family Law Sourcebook for British Columbia'', and the ''British Columbia Family Practice Manual''. These books are available in some public libraries (the [http://www.worldcat.org WorldCat] website will tell you if a library near you has copies) or at a branch of [http://www.courthouselibrary.ca Courthouse Libraries BC].

Legal research can be terribly complex, partly because there are so many different reporters and partly because there are so many cases. In fact, legal research is the subject of a whole course at law school. You can get some help from the librarians at your local courthouse law library or university law library, all of whom are really quite helpful. In fact, the law library at UBC has a research desk that can help with certain limited matters. You might also consider hiring a law student to plough through the law for you, and the law schools at UBC, the University of Victoria and Thompson Rivers University will have job posting boards where you can put up a note about your needs and contact information.

If all else fails, or your issue is really complex, try hiring a professional legal researcher. The Legal Research section of the Canadian Bar Association BC maintains a list of freelance research lawyers, available on the [http://www.courthouselibrary.ca/clientservices/researchers.aspx Courthouse Libraries BC] website.

==Legislation==

Both the Parliament of Canada and the Legislative Assembly of British Columbia have the power to make laws in their different areas of authority. This kind of law is called legislation, and each piece of legislation, called a statute, is intended to address a specific subject, like how we drive a car or how houses are built, where and when we can fish or hunt, what companies can do, and how schools, hospitals and the post office work. Legislation governs how we interact with each other and implements government policy.

Government can also make regulations for a particular piece of statute that might contain important additional rules or say how the legislation is to be interpreted. The big difference between legislation and regulations is that legislation is publicly debated and voted on by the members of Parliament or the Legislative Assembly. Regulations are made by government without the necessity of a parliamentary vote, and often don't get much publicity as a result.

Because statutes and regulations have such a big impact on how we live our lives, they are relatively easy to find and relatively easy to understand. Unlike the common law, legislation is written down and organized. All of the current federal statutes can be found on the website of the [http://laws-lois.justice.gc.ca/eng/ Department of Justice]. All of the current provincial statutes can be found on the [http://www.bclaws.ca/ BC Laws] website run by the Queen's Printer.

[http://www.canlii.org CanLII] also posts all current federal and provincial laws. It has the advantage of letting you see older versions of some laws, and you can search for cases that refer to specific statutes or regulations. You can also find the old ''Family Relations Act'' on CanLII, which you won't be able to find on the BC Laws website.

===The division of powers===

The governments' different areas of legislative authority are set out in [http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-18 ss. 91] and [http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-19 92] of the ''[http://laws-lois.justice.gc.ca/eng/Const/page-1.html Constitution Act, 1867]''. The federal government can only make laws about the subjects set out in s. 91 and the provincial governments can only make laws about the subjects set out in s. 92.

From a family law perspective, this means that only the federal government has the authority to make laws about marriage and divorce, while the provincial governments have the exclusive authority to make laws about marriage ceremonies, the division of property, and civil rights. As a result, the federal ''[[Divorce Act]]'' talks about divorce and issues that are related to divorce, like the care of children, child support and spousal support. The provincial ''[[Family Law Act]]'' talks about the care of children, child support and spousal support as well, but also talks about the division of family property and family debt, the management of children's property, and determining the parentage of children.

===The doctrine of paramountcy===

Sometimes the subjects over which each level of government has authority overlap and, according to a legal principle called the ''doctrine of paramountcy'', all laws are not created equal. Under this doctrine, federal legislation on a subject trumps any provincial legislation on the same subject. This is important because in family law both the ''Divorce Act'' and the ''Family Law Act'' deal with child support and spousal support. As a result, orders under ''Divorce Act'' will always be paramount to orders under the ''Family Law Act'' on the same subject.

===Family law legislation===

The two most important pieces of legislation relating to family matters are, as you will have gathered, the federal ''Divorce Act'' and the provincial ''Family Law Act''. The most important regulation is the [[Child Support Guidelines]], a regulation to the ''Divorce Act'' that has also been adopted for the ''Family Law Act''.

The ''Divorce Act'' talks about:

#divorce,
#custody of and access to children,
#child support, and
#spousal support.

The ''Family Law Act'' talks about:

#determining the parentage of children,
#guardianship, parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#family property, family debt and excluded property,
#children's property,
#protection orders, and
#financial restraining orders.

The Child Support Guidelines talks about:

#calculating child support and determining children's special expenses,
#determining income, and
#disclosure of financial information.

Because family law issues can be very broad and touch on other areas of law, such as contract law or company law, other pieces of legislation may also apply to a problem. For example, the ''[http://canlii.ca/t/8481 Name Act]'' allows a spouse to change her name following a divorce, the ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with adoption, the ''[http://canlii.ca/t/8456 Land Title Act]'' deals with real property, the ''[http://canlii.ca/t/848q Partition of Property Act]'' allows a co-owner of real property to force the sale of the property, and the ''[http://canlii.ca/t/84ld Business Corporations Act]'' deals with the incorporation of companies, shareholders' loans, and other things that may be important if a spouse owns or controls a company.

==Choosing the law and the court==

Both the federal ''Divorce Act'' and the provincial ''Family Law Act'' deal with family law issues. As well, both the Provincial Court and the Supreme Court have the authority to hear proceedings dealing with family law issues. Deciding which legislation you are going to make your claim under is called making the ''choice of law''. Deciding in which court you are going to bring your claim is called making the ''choice of forum''.

===Jurisdictional issues===

Because of the rules set out in the ''Constitution Act, 1867'', the federal government has the sole authority to make laws on the following subjects:

#marriage,
#divorce,
#spousal support and child support, and
#custody of and access to children.

Because of the same statute, provincial governments have exclusive authority to make laws dealing with these subjects:

#the formalities of the marriage ceremony,
#spousal support and child support,
#guardianship, parental responsibilities and parenting time,
#contact with children,
#the division of family property and family debt,
#adoption,
#child welfare, and
#changes of name.

To further complicate things, the Provincial Court and the Supreme Court can make orders about some of the same subjects, but not all, under some of the same legislation, but not all. The Provincial Court can only deal with applications involving laws made by the provincial government and, even then, it cannot deal with applications involving the division of a property or debt, or adoption. In family law proceedings, the Provincial Court can only deal with applications involving the following subjects:

#guardianship, parental responsibilities, parenting time and contact under the ''Family Law Act'',
#spousal support and child support under the ''Family Law Act'',
#the enforcement of such orders made under the ''Family Law Act'', and
#protection orders under the ''Family Law Act''.

The Supreme Court, on the other hand, can deal with all of these subjects and everything else, like divorce and other claims under the ''Divorce Act''.

If you wish to make a claim for an order for divorce, adoption, determining the parentage of a child, management of children's property, the division of family property and family debt, or the protection of family property, you must make your application to the Supreme Court. Otherwise, you can make your claim in either court.

Making matters worse, there can be simultaneous court proceedings involving the same people, and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, an action for a couple's divorce can be before the Supreme Court at the same time as an application about parental responsibilities and spousal support is being heard by the Provincial Court. In such a circumstance, either party can make an application that the proceedings in the Provincial Court be joined with those in the Supreme Court so that both court proceedings are heard at the same time before the same court.

===The choice of law===

If you wish to obtain a divorce, you must make your claim under the ''Divorce Act''. If you wish to obtain an order dealing with property or debt, you must make your claim under the ''Family Law Act''. However, if you wish to apply for an order for almost anything else and you are married, you may make your claim under either piece of legislation.

There are one or two points you may wish to consider, however. Only married spouses make applications under the ''Divorce Act''. Unmarried spouses and other unmarried people may make applications for relief under the ''Family Law Act'' alone. Also, if your proceeding is before the Provincial Court, you must make your claim under the ''Family Law Act''. If your case is before the Supreme Court, you may claim under either the ''Divorce Act'' or the ''Family Law Act'', or under both.

The following chart shows which law deals with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|''Family Law Act''
!style="width: 20%" align="center"|''Divorce Act''
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Guardianship and parental responsibiities||align="center"|Custody
|-
|align="center"|'''Time with children'''||align="center"|Parenting time or contact||align="center"|Access
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''||align="center"|Yes||
|-
|align="center"|'''Protection orders'''||align="center"|Yes||
|-
|align="center"|'''Financial restraining orders'''||align="center"|Yes||
|}

===The choice of forum===

In family law matters, choosing the ''forum'' of a court proceeding means making the choice to proceed in either the Provincial Court or the Supreme Court. The Provincial Court has certain limits to its authority and, as a result has limits on the kinds of claims it can hear. The Supreme Court has the authority to deal with every almost legal issue within British Columbia. It also has something called "inherent jurisdiction," meaning that the Supreme Court, unlike the Provincial Court, is not limited to the authority it is given by legislation. It is safe to say that, as far as family matters are concerned, the Supreme Court can deal with everything the Provincial Court can as well as everything it can't.

The process of each court is guided by each court's set of rules. The [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] offer a much wider variety of tools and remedies than the [http://canlii.ca/t/85pb Provincial Court Family Rules], particularly in terms of the information and documents each side can make the other produce in the course of a proceeding. For example, the Supreme Court rules allow a party to make the other party submit to an examination for discovery, or make a company or third party produce records. These disclosure mechanisms are not available in the Provincial Court.

You may want to think about the relative complexity of the two courts' sets of rules, particularly if you plan to represent yourself and not hire a lawyer. The Provincial Court's rules are written in plain language and are fairly straightforward. The Supreme Court Family Rules are much more complicated and aren't written in the most easy to understand language.

Finally, you may also want to think about the cost of proceeding in each court. The Provincial Court charges no filing fees and has a relatively streamlined procedure. The Supreme Court charges filing fees, and the extra tools and remedies available under the Supreme Court Family Rules are helpful but will add to the cost of bringing a proceeding to trial.

This chart shows which level of court can deal with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Provincial Court
!style="width: 20%" align="center"|Supreme Court
|-
|align="center"|'''''Divorce Act'''''|| ||align="center"|Yes
|-
|align="center"|'''''Family Law Act'''''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Time with children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''|| ||align="center"|Yes
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''|| ||align="center"|Yes
|-
|align="center"|'''Protection orders'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial restraining orders'''|| ||align="center"|Yes
|}

While it is possible to start an action in the Provincial Court to deal with one or two issues (like parental responsibilities or child support) and later start an action in the Supreme Court to deal with other issues (like dividing family property or divorce) it's usually best to confine yourself to a single court to avoid overlaps and keep things as simple as possible.


==Resources and links==

===Legislation===

* ''[[Divorce Act]]''
* ''[[Family Law Act]]''
* [[Child Support Guidelines]]
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html The Constitution of Canada]''

===Links===

* [http://www.canlii.org CanLII]
* [http://www.provincialcourt.bc.ca/judgments-decisions Decisions of the Provincial Court of British Columbia]
* [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Decisions of the Supreme Court of British Columbia]
* [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Decisions of the Court of Appeal for British Columbia]
* [http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Decisions of the Supreme Court of Canada]
* [http://www.worldcat.org WorldCat]
* [http://blog.canlii.org/2012/07/06/one-minute-legal-research-a-student-made-video-series/ CanLII blog] (video tutorials on using CanLII)
* [http://www.courthouselibrary.ca/clientservices/researchers.aspx List of legal research lawyers]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

You and Your Lawyer

2019-06-24T15:44:24Z

Mark Norton: Update to date re; last reviewed

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/expect_from_lawyer.php what to expect from a lawyer]
}}Lawyers are people with special legal training (and a law degree) who are licensed to practise law by their province's law society. The jobs of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia] are to regulate who can be a lawyer and to protect the public by setting and enforcing standards of professional conduct. Since many people involved in a family law dispute haven't had to deal with lawyers before, this section is about your relationship with your lawyer.

This section provides an overview of the lawyer-client relationship. It discusses how to find and hire a lawyer, how your lawyer bills for their services, what you can do if you're not happy with your lawyer, and how you or your lawyer can end the lawyer-client relationship.

==Introduction==

All lawyers in British Columbia are members of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia]. Many are also members of the [http://www.cba.org/ Canadian Bar Association] and local bar associations like the [http://www.vancouverbar.ca/ Vancouver Bar Association], the [http://www.vicbar.com/ Victoria Bar Association] or the [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]. The Law Society's primary purpose is to govern and regulate lawyers to protect the public interest. As officers of the court and as members of the Law Society, lawyers are held to a high standard of conduct.

Your lawyer's primary job is to protect and advance your legal interests. At the same time, your lawyer must follow this high standard of conduct and act at all times in an ethical manner. Lawyers' duties to their clients, to each other and to the courts are governed by:

*the ''[https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/legal-profession-act/ Legal Profession Act]'',
*the [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules] of the Law Society of British Columbia, and
*the Law Society's [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Code of Professional Conduct].

Boiling all this down a bit, your lawyer performs two key roles. First, your lawyer is like a plumber: if you tell your plumber to install your sink, they install your sink. On the other hand, if you tell your plumber to hook the hot water pipe up to the ice-making machine intake, you'd expect your plumber to give you some common sense advice about why that might be a bad idea. Second, your lawyer is like a champion: your lawyer is your sword and shield, protecting you from some of the more unpleasant and adversarial aspects of litigation while boldly pursuing your claim.

You should expect your lawyer to take the heat for you and fearlessly advance your claim. While you should expect your lawyer to do just what you tell them to do, you should also expect your lawyer to give you good advice if your instructions are not in your best interests, and perhaps even refuse to accept your instructions. You should especially expect your lawyer to tell you if what you want to do will be harmful to your case. Your lawyer is not your "friend". They are a professional who should tell you what you need to hear about your case, and offer objective and reasoned, not emotionally motivated guidance. This can be a bit disconcerting to a person experiencing a high level of emotional distress.

Some lawyers are also mediators, arbitrators, and parenting coordinators. Lawyers who act in these roles are not serving as advocates in a traditional lawyer-client relationship; their jobs are much different.

Lawyers who are family law mediators have special, additional training in mediation. Family law mediators do not represent you or your spouse; they are providing mediation services to the both of you, rather than advocacy services for just one of you. Lawyers who act as mediators are neither party's advocate.

Lawyers who are family law arbitrators have special, additional training in arbitration and have to meet other requirements imposed by the Law Society and the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Family law arbitrators are like private judges; their job is to hear the evidence and arguments necessary to decide a problem and then decide the problem by making a decision. Lawyers who act as arbitrators are neither party's advocate; they are neutral decision makers.

Lawyers who are parenting coordinators are trained as mediators and arbitrators, and have a great deal of training on top of that. The sort of services parenting coordinators provide are a blend of mediation and arbitration, with a bit of counselling thrown in. Parenting coordinators help parents deal with parenting disputes when they arise and, if an agreement cannot be reached through a process that's a lot like mediation, then the parenting coordinator will make a decision resolving the issue through a process that's a lot like arbitration. Lawyers who act as parenting coordinators are neither party's advocate. If they're anyone's advocate, they're the children's advocate.

The website of the [http://www.lawsociety.bc.ca Law Society of British Columbia] is an extremely helpful resource for people who have hired a lawyer or people who are thinking of retaining a lawyer. It provides a lot of information about the lawyer-client relationship and about lawyers' ethical duties to their clients.

==Finding and hiring a lawyer==

Sometimes the best way to find a lawyer is the same way you find a family doctor or a school for your children: by word of mouth. Ask your friends, family and co-workers if they've ever used a family law lawyer, and, if so, how they liked that person. Did the lawyer return telephone calls promptly? Did the lawyer keep them up to speed on the progress of their file? Was the lawyer's bill reasonable? Did they feel comfortable with their lawyer? You can also ask your doctor, your accountant or your dentist if they can refer you to someone. Some of the other things you might want to think about when hiring a lawyer are described in the section on [[Separating Emotionally]].

The Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service] is another way to find a lawyer. This service keeps a roster of subscribing lawyers in your area, a list of the areas of law they practise and a list of the languages they speak. Call 604-687-3221 in Vancouver and the Lower Mainland or, elsewhere in British Columbia, call 1-800-663-1919.

Yet another way to find a lawyer is by contacting the Legal Services Society (LSS) for [http://www.clicklaw.bc.ca/helpmap/service/1053 Legal Aid Intake Services]. LSS provides legal aid in British Columbia, and, if you meet their criteria, they will refer you to a lawyer and pay for the lawyer's services to boot. Be warned however, that since the provincial government's catastrophic reduction of funding to LSS in 2002, legal aid will generally only be available for people dealing with situations of family violence or where the abduction of children is a possibility. Go to LSS's website on [http://www.lss.bc.ca/legal_aid/howToApply.php how to apply for legal aid] for more information about their eligibility criteria.

If none of this works out, you can try finding a lawyer through the Yellow Pages or the internet, but only as a last resort. Typing "<tt>vancouver family lawyer</tt>" or "<tt>best divorce lawyer</tt>" into a search engine is a terrible way to find a lawyer; while you'll get a ton of results, you won't know anything about those lawyers except for the things they say about themselves on their websites. The same thing applies to picking a lawyer through a Yellow Pages ad.

Remember that not all lawyers practise family law, of course, and this is something you may want to take into consideration. Some lawyers focus exclusively on family law, so that family law is the whole of their practice; others practise family law along with other areas of the law. If a lawyer advertises in the Yellow Pages or online, the lawyer's ad or website will usually say exactly what area or areas of law they practise. You may wish to pay special attention to lawyers who tend to spend all or most of their time on family law matters.

===The first interview===

Once you've gathered the names of a few lawyers who sound promising, make an appointment to meet with each of them. A few lawyers will offer you some of their time for free or at a reduced rate for an initial interview. The lawyers you meet through the Lawyer Referral Service will charge a special reduced fee for a half-hour initial interview. Most lawyers however will bill for initial interviews at their usual hourly rate.

''Do not assume that the lawyer will not charge for their time unless the lawyer specifically advertises that they offer free initial consultations.'' Expect a bill for the lawyer's time!

Use this first meeting as an opportunity to assess how you feel about each lawyer and how you relate to them; you needn't hire the first lawyer you meet. You are entitled to shop around before you choose the lawyer who is right for you. You can also use your first interview with each lawyer to get that lawyer's take on your problem. Tell them about your problem concisely, and let the lawyer ask questions which pull out the details of your problem.

Don't be shy about asking lawyers about their hourly rates, how they will bill you, and what sort of disbursements (a lawyer's out-of-pocket expenses for things like photocopying and filing fees) the lawyer will expect that you pay for. Ask what sort of retainer they will require, what their interest rate is on overdue accounts, and whether they will be charging you any additional fees based on their success or the complexity of your problem. Ask whether anyone else in their firm will be working on your file, whether you will be billed for their work, and maybe ask to meet them too.

(If you're meeting with a lawyer who also works as a family law mediator or family law arbitrator, and you're thinking of hiring them to act in that capacity, you don't want to give the lawyer too many details about your situation. Family law mediators and family law arbitrators must be neutral and impartial. Too much information from just one of you may make the lawyer unable to help resolve your dispute.)

For a summary guide to your first interview with a lawyer, see [[How Do I Prepare for My First Meeting with a Lawyer?]] It's located in the ''How Do I?'' part of this resource in the ''Miscellaneous'' section.

===Hiring your lawyer===

Once you've picked a lawyer you like and have decided to hire them, your lawyer will require you to sign a retainer agreement and give them a deposit towards your first of couple of bills. Hiring a lawyer is called ''retaining'' a lawyer. A ''retainer agreement'' is a contract between your lawyer and yourself that you each must sign, and which sets out the legal and financial aspects of your relationship to each other. Read the agreement carefully! If there are any terms you don't understand, be sure to ask your lawyer, and, likewise, if you object to any of the terms of the agreement, express your objection and ask how your concern might be addressed. A ''retainer'' is a sum of money you will likely be asked to give as a deposit against your lawyer's future services and fees.

Never hesitate to tell your lawyer about any concerns you have about their bills or services.

(A family law mediator will ask you to sign an Agreement to Mediate rather than the usual retainer agreement. The Agreement to Mediate will set out the details of the mediator's rate and expectations about payment, and how each mediation session will be paid for. The same thing applies to family law arbitrators. Parenting coordinators will want you to sign a Parenting Coordination Agreement, and will usually ask for both a retainer and a fee deposit.)

===Unbundled family law services===

Traditionally, retaining a lawyer meant handing all the legal work over to the lawyer and their staff to handle. More recently, however, a different kind of retainer agreement called a ''limited scope retainer'' has become more popular. Another term that's used for this arrangement is ''unbundling'' or ''unbundled legal services''. With unbundled legal services, a lawyer or paralegal is only doing some of the work. It could be helping to prepare the first documents required to start a case, or helping to negotiate with the other party, or any other task that the limited scope retainer agreement specifies. The arrangement usually costs less than full-scope legal representation because the lawyer providing unbundled legal services works on, and charges you for, only those tasks that you agree to in advance.

Not all family lawyers offer this arrangement, however there is a BC Family Unbundling Roster online listing of ones that do. Visit [http://www.unbundling.ca www.unbundling.ca] to learn more.

==How your lawyer charges you==

You should discuss with your lawyer, at the very first meeting, exactly how the lawyer will bill you for their time and for the expenses the lawyer incurs in working on your file. Most lawyers will bring this up on their own, but if your lawyer happens to forget to talk about it, you should bring it up. Don't be shy. You will, at a minimum, want to know what the lawyer's hourly rate is and what the lawyer's expectations are regarding payment of each account.

===Your retainer===

In British Columbia, family law lawyers cannot work on a contingency basis — for a percentage of the client's award or settlement — which is how some other lawyers, like personal injury lawyers, often get paid. Family law lawyers bill for their services by the hour, although some may bill on fixed, flat-rate for smaller tasks where the scope of the lawyer's services is clearly limited.

Family law lawyers will usually expect to be paid some money up front, called a retainer. While some family law lawyers will agree to be paid from the proceeds of the sale of an asset following trial, most often they'll expect to be paid by an initial retainer followed by additional retainer payments or a monthly billing process.

The amount you pay as your retainer is held by your lawyer in trust. Your lawyer will withdraw money from the retainer each time they bill you. After a couple of bills or more have been paid from the retainer, the retainer may be exhausted. At that point your lawyer will usually ask you for another retainer, or your lawyer may simply bill you directly each month. On the other hand, if your problem is resolved more quickly than was expected or if you fire your lawyer, you will be entitled to a refund of however much of the retainer is left over.

The terms of how your lawyer will bill you will be set out in your retainer agreement. This is one of the reasons why it is essential that you read the agreement carefully before you sign it. Note that lawyers' fees are subject to PST and GST. Mediators' fees and parenting coordinators' fees are subject to just GST.

===Reviewing your lawyer's bill===

Both you and your lawyer have the right to have the lawyer's bills reviewed for fairness under the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'' to fix a final amount owing. The fee review is performed by a registrar or master of the Supreme Court at a formal hearing in court.

At this hearing, the registrar will be presented with the lawyer's bills to you, and any other supporting documents, such as a time diary, a statement of the lawyer's charges to your bill by the amount of time spent on each task on a day-by-day basis, and the documents and correspondence that were generated over the course of the lawyer's services to you. Your lawyer will attempt to satisfy the registrar that their fees were reasonable and that the amounts billed for disbursements were reasonable. The registrar will look at the bills and apply a number of considerations in arriving at their decision, including:

*the value and importance of the results obtained,
*the complexity or novelty of the issues,
*whether the time spent was reasonable, and
*whether your lawyer's hourly rate was reasonable.

You will, of course, have the opportunity to present your side of the case and dispute your lawyer's bill as you see fit.

After hearing all the evidence, the registrar will issue a ''Certificate of Fees'' which sets out the amount of fees and disbursements that the registrar has approved as reasonable. That becomes the amount you owe to your lawyer for their services, and, in some cases, the amount of the refund your lawyer owes you. Most importantly, the Certificate of Fees has the same standing as a court judgment and can be used as such to enforce the amount owing to the lawyer or the amount owed by the lawyer to you.

As an alternative to a review under the ''Legal Profession Act'', the Law Society operates a [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Fee Mediation Program]. This is an informal process for dealing with fee disputes without having to go to court.

===Tax deductions for legal fees===

The portion of a lawyer's bill attributable to obtaining or enforcing an order for child support or spousal support is tax deductible. The cost of defending a claim for spousal support or child support is not deductible.

To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of their fees were attributable to advancing a spousal or child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case. Lawyers do not keep track of things like this automatically, mostly because it involves extra work and cost to the client that may outweigh the tax benefit.

If you don't ask your lawyer about this at the beginning of their retainer, it may be impossible to winnow out the parts of the lawyer's bills that were dedicated to support issues, and the cost of the time your lawyer spent reviewing your file. Their bills to figure this out may cost more than the deduction you will get.

==If you are dissatisfied==

If you are concerned about how your file is being handled or have a complaint about your lawyer, you should first of all discuss the matter with your lawyer. This may not always be appropriate. You may wish to contact the Law Society before you speak with your lawyer. Most lawyers, however, are deeply concerned about the satisfaction of their clients, and will go out of their way to fix, or at least explain, any problem you might be experiencing.

The Law Society exists to govern the legal profession for the benefit of the public. It is not the lawyer's friend or ally. You have the right to bring a complaint to the Law Society about a lawyer's actions or lack of action. You can contact the Law Society at:

<blockquote>The Law Society of British Columbia 
845 Cambie Street 
Vancouver, British Columbia 
V6B 4Z9 
  
Telephone 604-669-2533 or 1-800-903-5300 
Facsimile 604-669-5232</blockquote>

There is no charge to speak to one of the Law Society's complaints officers and you do not need to hire a lawyer to make a complaint or begin the complaints process.

==Ending the lawyer-client relationship==

You or your lawyer can end your working relationship; you can fire your lawyer and your lawyer can fire you. From a lawyer's point of view, neither event occurs particularly often, but it does happen.

===Firing your lawyer===

Clients usually want to fire their lawyers when they're unhappy with the service they're receiving. You can fire your lawyer simply by sending them a letter to that effect or giving your lawyer a call, though you will no doubt want to phrase a bit more nicely than "I'm firing you." The lawyer-client relationship is a business relationship, and you can terminate this relationship any time you wish.

Of course, there will be some things left to deal with after you've given your lawyer the news.

First, you'll have to pay your outstanding account, if there is one. If you disagree with the amount charged, you can apply to the court to have your lawyer's bill reviewed, which is described in more detail above. On the other hand, if there's still money in your retainer, that's your money and you can ask to have it sent back to you.

Then there's the matter of your file. If your case is still on-going, you'll need to get your file. If you've hired another lawyer, your lawyer will normally just send it to your new counsel; if you haven't, you're entitled to ask that your lawyer send it straight to you. Of course, there may be a slight problem if you still owe money to your lawyer. If you still owe money, your lawyer is entitled to keep your file until their account is paid in full. In the right circumstances, your lawyer may agree to transfer your file to your new lawyer on the new lawyer's promise to make sure that the bill gets paid when the file concludes.

===When your lawyer fires you===

This really doesn't happen all that frequently. Most often, a lawyer will fire their client for one of the following reasons:

*an account is unpaid and there is a low likelihood that the account will get paid,
*the client refuses to give reasonable instructions or follow the lawyer's advice, or
*the trust aspect of the lawyer-client relationship has broken down.

If your lawyer fires you, they will normally do so in a letter detailing the reason why they can no longer act for you and highlighting any important dates that are upcoming in your case. Most lawyers will also recommend other lawyers you may wish to consider retaining in their place.

After you've been fired, the same concerns arise as if you'd fired your lawyer. The lawyer will be concerned about an outstanding account and you will want your file back, or at least transferred to a new lawyer. As far as your outstanding account is concerned, it's important to know that your lawyer can have their own bill reviewed under the ''Legal Profession Act'' to get a judgment about the amount owing; that's something both of you can do.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/legal-profession-act/ Legal Profession Act]''

===Links===

* [http://www.lawsociety.bc.ca/ Law Society of British Columbia]
* [http://www.cba.org/ Canadian Bar Association]
* [http://www.vancouverbar.ca/ Vancouver Bar Association]
* [http://www.vicbar.com/ Victoria Bar Association]
* [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ Law Society of BC Rules]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/ Law Society's Code of Professional Conduct]
* [http://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-policy/legislation-updates/family-law-act/the-family-law-act-regulations-explained Family Law Act Regulations Explained – Ministry of Justice website]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service]
* [http://www.clicklaw.bc.ca/helpmap/service/1053 LSS Legal Aid Intake Services]
* [http://www.lss.bc.ca/legal_aid/howToApply.php LSS website on how to apply for legal aid]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [https://www.lawsociety.bc.ca/complaints-lawyer-discipline-and-public-hearings/complaints/complaints-about-lawyers-fees/ Law Society Fee Mediation Program]
* [http://www.unbundling.ca BC Family Unbundling Roster]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 24, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2019-06-24T15:42:54Z

Mark Norton: Update to date

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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. It is important to know the law and your rights.

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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction of the Provincial Court narrower than the Supreme Court. The Provincial Court deals only 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 valued between $5001 to $35,000, and Family Court cannot deal with claims involving family property or 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 constitution. 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 [http://canlii.ca/t/8mcr Supreme Court Family Rules], which apply just to family law disputes, and the [http://canlii.ca/t/8lld 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 they were 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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

The person who started the court proceeding will go first and presents their evidence. The other party goes next and presents the evidence supporting their 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 they have 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 parties' arguments. Most of the time, however, the judge will need to think about the evidence and the law before they can make a decision. This is called a "reserved judgment."

===Appeal basics===

The decision of the judge at the trial can be challenged to a designated court of review. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

An appeal court very rarely hears new evidence or makes 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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://www.bccourts.ca/ Courts of British Columbia website]
*[https://www.scc-csc.ca/ Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]] on June 24, 2019}}
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[[Category:JP Boyd on Family Law]]

The Law for Family Matters

2017-06-08T18:33:58Z

Mark Norton:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://familylaw.lss.bc.ca/resources/fact_sheets/choosing_court.php choosing Provincial or Supreme Court]
}}When lawyers speak about the law, they are really talking about two different things. The first kind of law is the laws made by the provincial and federal governments, called legislation. The other kind of law is the common law, which is the rules and principles developed by the courts as they decide case after case.

This section provides an overview of legislated laws, the common law, and the common law system of justice. It also talks about how to decide whether to begin a court proceeding under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]''.

==Introduction==

Under the [http://laws-lois.justice.gc.ca/eng/Const/index.html ''Constitution of Canada''], the federal and the provincial governments both have the power to make laws. Each level of government has its own particular area of jurisdiction, meaning that a subject that the federal government can pass laws on, the provincial governments generally can't, and vice versa. For example, the provinces have jurisdiction over property rights, so they can pass laws governing real estate, the sale of cars, the division of family property, and so forth. The federal government doesn't have the ability to make laws about property rights, except in certain special circumstances. On the other hand, the federal government can pass laws dealing with the military, navigation and shipping, and divorce, things that are outside the jurisdiction of the provincial governments. This distinction is important in family law because the laws of both the federal and provincial governments can relate to a problem, and you need to know which law governs what issue.

Legislated laws are only one source of law. Our constitution is another source of law, and another is the common law, also known as judge-made law. The fundamental principle of the common law is the idea that when a court has made a decision on a particular issue, another court facing a similar issue — with similar parties in similar circumstances — ought to make a similar decision. Courts are said to be "bound" by the decisions of earlier courts in previous cases. As no two cases are entirely alike, each court's decision is said to stand for a principle, a statement of what the law should be in the particular circumstances of that case. Sometimes this principle is an elaboration or a clarification of the general rule on a particular subject; sometimes it is a statement about what the law ought to be.

Our constitution requires that the courts be independent from the government. Despite this separation, the courts have a certain kind of authority over the government and the government has a certain kind of authority over the courts. For example, if the government passes a law that the court concludes is contrary to the constitution, the court can strike the legislation or make the government change it. On the other hand, the government has the authority to pass laws that change the common law rules made by the courts, although it can't change the court's decision in a particular case.

==The common law==

The common law of Canada is hundreds of years old and has its roots in England, in the ''curia regis'' established by King Henry II in 1178 and in the court of common pleas established by the Magna Carta in 1215, although really the oldest cases we are likely to refer to are from the 1800s. The common law is developed by the courts as they deal with each case, following a legal principle known by its Latin name, ''stare decisis''. Under this principle, a court dealing with a particular kind of problem is required, usually, to follow the decisions of previous courts that dealt with the same sort of problem in the same sort of circumstances. Court decisions are sometimes called "precedents" or "precedent decisions" because of the ''stare decisis'' principle.

Think of it like this. A long time ago, someone sued someone else for riding a horse onto his potato field without being invited. The court decided that you shouldn't be free to enter onto the property of another unless you were invited to do so, and found that the rider had ''trespassed''. Someone else riding a different horse onto a different field would be found liable for trespass based on the principle established by the first court. The first case was a precedent for the court's decision in the second case.

===The common law and government===

While the court is more or less free to develop the common law as it sees fit, the principles of the common law can be overridden by legislation made by the government. For example, the laws that deal with the interpretation and enforcement of contracts were at one point entirely governed by the common law. The government, as it decided it needed to regulate different aspects of the law of contracts, has made legislation covering lots of different areas of contract law, including such laws as the provincial ''Sale of Goods Act'' or the federal ''Advance Payments for Crops Act''. The new legislation overruled the old common law principles.

From a family law perspective, it used to be the case that a husband could sue someone else for "enticing" his wife to commit adultery or to leave him. Suing someone for enticement was a claim created by the courts. The ''[[Family Law Act]]'' now expressly forbids a spouse from bringing a court proceeding for enticement, thus overriding the common law rule. Other old common law claims abolished the ''Family Law Act'' include claims for breach of promise of marriage and loss of the benefits of marriage.

===The common law and legislation===

This leads to another important aspect of our legal system and the common law. The courts and the common law also play a role in interpreting laws made by the governments. Much of the case law in family law matters doesn't deal with ancient common law principles; it deals with how the courts have interpreted the legislation bearing on family law in the past. For example, [http://canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec15.2subsec4 s. 15.2(4)] of the ''[[Divorce Act]]'' says that in considering a claim for spousal support, the court must:

<blockquote><tt>
... take into consideration the condition, means, needs and other circumstances of each spouse, including 
(a) the length of time the spouses cohabited; 
(b) the functions performed by each spouse during cohabitation; and 
(c) any order, agreement or arrangement relating to support of either spouse. 
</tt></blockquote>

A lot of the case law that deals with spousal support is about how this particular section of the ''Divorce Act'' has been interpreted in past cases. A lawyer making an argument about why spousal support should be awarded to her client now might make an argument to the judge supported by case law showing how this section has been interpreted to award spousal support in the past to spouses in circumstances similar to those of her client.

===Finding case law===

Because the common law consists of the decisions of judges made over the past several hundred years, the common law is researched by looking at these decisions. These decisions are written down and printed in books. These books, depending on the publisher, are issued on a monthly, quarterly or annual basis. (When you see a promotional photograph of a lawyer standing in front of a giant rack of musty, leather-bound books, the lawyer is standing in front of these collections of the case law.) These books, called ''reporters'', are where the past decisions of the courts are available if you need to make an argument about how the law applies to your particular situation. The most important reporter for family law is called the ''Reports on Family Law'', or the RFL for short, published by Carswell. You can find collections of case law reporters in the library of your local courthouse or at a law school in your neighbourhood. These libraries are open to the public, although they may have restricted business hours.

Thankfully, these days almost every important decision is published online as well. This makes research a lot easier and saves a lot of time travelling to and from libraries. [http://canlii.org CanLII], the Canadian Legal Information Institute, has a collection of most cases published since 1990 and a growing number of older cases from all parts of Canada. There are video tutorials on using CanLII effectively, courtesy of [http://blog.canlii.org/2012/07/06/one-minute-legal-research-a-student-made-video-series/ CanLII's blog] and [http://www.courthouselibrary.ca/training/videos/FindingCasesOnPoint.aspx Courthouse Libraries BC's website].

The courts also post case law on their respective websites. Search the judgments of:

*the [http://www.provincialcourt.bc.ca/judgments-decisions Provincial Court of British Columbia],
*the [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Supreme Court of British Columbia],
*the [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Court of Appeal for British Columbia], and
*the [http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Supreme Court of Canada].

These websites also keep lists of recently released decisions that may be published there before making it to CanLII.

Another way to look up case law is to read digests of the law on particular subjects. The best materials on family law are two books published by the Continuing Legal Education Society of British Columbia:the ''Family Law Sourcebook for British Columbia'', and the ''British Columbia Family Practice Manual''. These books are available in some public libraries (the [http://www.worldcat.org WorldCat] website will tell you if a library near you has copies) or at a branch of [http://www.courthouselibrary.ca Courthouse Libraries BC].

Legal research can be terribly complex, partly because there are so many different reporters and partly because there are so many cases. In fact, legal research is the subject of a whole course at law school. You can get some help from the librarians at your local courthouse law library or university law library, all of whom are really quite helpful. In fact, the law library at UBC has a research desk that can help with certain limited matters. You might also consider hiring a law student to plough through the law for you, and the law schools at UBC, the University of Victoria and Thompson Rivers University will have job posting boards where you can put up a note about your needs and contact information.

If all else fails, or your issue is really complex, try hiring a professional legal researcher. The Legal Research section of the Canadian Bar Association BC maintains a list of freelance research lawyers, available on the [http://www.courthouselibrary.ca/clientservices/researchers.aspx Courthouse Libraries BC] website.

==Legislation==

Both the Parliament of Canada and the Legislative Assembly of British Columbia have the power to make laws in their different areas of authority. This kind of law is called legislation, and each piece of legislation, called a statute, is intended to address a specific subject, like how we drive a car or how houses are built, where and when we can fish or hunt, what companies can do, and how schools, hospitals and the post office work. Legislation governs how we interact with each other and implements government policy.

Government can also make regulations for a particular piece of statute that might contain important additional rules or say how the legislation is to be interpreted. The big difference between legislation and regulations is that legislation is publicly debated and voted on by the members of Parliament or the Legislative Assembly. Regulations are made by government without the necessity of a parliamentary vote, and often don't get much publicity as a result.

Because statutes and regulations have such a big impact on how we live our lives, they are relatively easy to find and relatively easy to understand. Unlike the common law, legislation is written down and organized. All of the current federal statutes can be found on the website of the [http://laws-lois.justice.gc.ca/eng/ Department of Justice]. All of the current provincial statutes can be found on the [http://www.bclaws.ca/EPLibraries/bclaws_new/content?xsl=/templates/toc.xsl/group=A/lastsearch=/ BC Laws] website run by the Queen's Printer.

[http://www.canlii.org CanLII] also posts all current federal and provincial laws. It has the advantage of letting you see older versions of some laws, and you can search for cases that refer to specific statutes or regulations. You can also find the old ''Family Relations Act'' on CanLII, which you won't be able to find on the BC Laws website.

===The division of powers===

The governments' different areas of legislative authority are set out in [http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-18 ss. 91] and [http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-19 92] of the ''[http://laws-lois.justice.gc.ca/eng/Const/page-1.html Constitution Act, 1867]''. The federal government can only make laws about the subjects set out in s. 91 and the provincial governments can only make laws about the subjects set out in s. 92.

From a family law perspective, this means that only the federal government has the authority to make laws about marriage and divorce, while the provincial governments have the exclusive authority to make laws about marriage ceremonies, the division of property, and civil rights. As a result, the federal ''[[Divorce Act]]'' talks about divorce and issues that are related to divorce, like the care of children, child support and spousal support. The provincial ''[[Family Law Act]]'' talks about the care of children, child support and spousal support as well, but also talks about the division of family property and family debt, the management of children's property, and determining the parentage of children.

===The doctrine of paramountcy===

Sometimes the subjects over which each level of government has authority overlap and, according to a legal principle called the ''doctrine of paramountcy'', all laws are not created equal. Under this doctrine, federal legislation on a subject trumps any provincial legislation on the same subject. This is important because in family law both the ''Divorce Act'' and the ''Family Law Act'' deal with child support and spousal support. As a result, orders under ''Divorce Act'' will always be paramount to orders under the ''Family Law Act'' on the same subject.

===Family law legislation===

The two most important pieces of legislation relating to family matters are, as you will have gathered, the federal ''Divorce Act'' and the provincial ''Family Law Act''. The most important regulation is the [[Child Support Guidelines]], a regulation to the ''Divorce Act'' that has also been adopted for the ''Family Law Act''.

The ''Divorce Act'' talks about:

#divorce,
#custody of and access to children,
#child support, and
#spousal support.

The ''Family Law Act'' talks about:

#determining the parentage of children,
#guardianship, parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#family property, family debt and excluded property,
#children's property,
#protection orders, and
#financial restraining orders.

The Child Support Guidelines talks about:

#calculating child support and determining children's special expenses,
#determining income, and
#disclosure of financial information.

Because family law issues can be very broad and touch on other areas of law, such as contract law or company law, other pieces of legislation may also apply to a problem. For example, the ''[http://canlii.ca/t/8481 Name Act]'' allows a spouse to change her name following a divorce, the ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with adoption, the ''[http://canlii.ca/t/8456 Land Title Act]'' deals with real property, the ''[http://canlii.ca/t/848q Partition of Property Act]'' allows a co-owner of real property to force the sale of the property, and the ''[http://canlii.ca/t/84ld Business Corporations Act]'' deals with the incorporation of companies, shareholders' loans, and other things that may be important if a spouse owns or controls a company.

==Choosing the law and the court==

Both the federal ''Divorce Act'' and the provincial ''Family Law Act'' deal with family law issues. As well, both the Provincial Court and the Supreme Court have the authority to hear proceedings dealing with family law issues. Deciding which legislation you are going to make your claim under is called making the ''choice of law''. Deciding in which court you are going to bring your claim is called making the ''choice of forum''.

===Jurisdictional issues===

Because of the rules set out in the ''Constitution Act, 1867'', the federal government has the sole authority to make laws on the following subjects:

#marriage,
#divorce,
#spousal support and child support, and
#custody of and access to children.

Because of the same statute, provincial governments have exclusive authority to make laws dealing with these subjects:

#the formalities of the marriage ceremony,
#spousal support and child support,
#guardianship, parental responsibilities and parenting time,
#contact with children,
#the division of family property and family debt,
#adoption,
#child welfare, and
#changes of name.

To further complicate things, the Provincial Court and the Supreme Court can make orders about some of the same subjects, but not all, under some of the same legislation, but not all. The Provincial Court can only deal with applications involving laws made by the provincial government and, even then, it cannot deal with applications involving the division of a property or debt, or adoption. In family law proceedings, the Provincial Court can only deal with applications involving the following subjects:

#guardianship, parental responsibilities, parenting time and contact under the ''Family Law Act'',
#spousal support and child support under the ''Family Law Act'',
#the enforcement of such orders made under the ''Family Law Act'', and
#protection orders under the ''Family Law Act''.

The Supreme Court, on the other hand, can deal with all of these subjects and everything else, like divorce and other claims under the ''Divorce Act''.

If you wish to make a claim for an order for divorce, adoption, determining the parentage of a child, management of children's property, the division of family property and family debt, or the protection of family property, you must make your application to the Supreme Court. Otherwise, you can make your claim in either court.

Making matters worse, there can be simultaneous court proceedings involving the same people, and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, an action for a couple's divorce can be before the Supreme Court at the same time as an application about parental responsibilities and spousal support is being heard by the Provincial Court. In such a circumstance, either party can make an application that the proceedings in the Provincial Court be joined with those in the Supreme Court so that both court proceedings are heard at the same time before the same court.

===The choice of law===

If you wish to obtain a divorce, you must make your claim under the ''Divorce Act''. If you wish to obtain an order dealing with property or debt, you must make your claim under the ''Family Law Act''. However, if you wish to apply for an order for almost anything else and you are married, you may make your claim under either piece of legislation.

There are one or two points you may wish to consider, however. Only married spouses make applications under the ''Divorce Act''. Unmarried spouses and other unmarried people may make applications for relief under the ''Family Law Act'' alone. Also, if your proceeding is before the Provincial Court, you must make your claim under the ''Family Law Act''. If your case is before the Supreme Court, you may claim under either the ''Divorce Act'' or the ''Family Law Act'', or under both.

The following chart shows which law deals with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|''Family Law Act''
!style="width: 20%" align="center"|''Divorce Act''
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Guardianship and parental responsibiities||align="center"|Custody
|-
|align="center"|'''Time with children'''||align="center"|Parenting time or contact||align="center"|Access
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''||align="center"|Yes||
|-
|align="center"|'''Protection orders'''||align="center"|Yes||
|-
|align="center"|'''Financial restraining orders'''||align="center"|Yes||
|}

===The choice of forum===

In family law matters, choosing the ''forum'' of a court proceeding means making the choice to proceed in either the Provincial Court or the Supreme Court. The Provincial Court has certain limits to its authority and, as a result has limits on the kinds of claims it can hear. The Supreme Court has the authority to deal with every almost legal issue within British Columbia. It also has something called "inherent jurisdiction," meaning that the Supreme Court, unlike the Provincial Court, is not limited to the authority it is given by legislation. It is safe to say that, as far as family matters are concerned, the Supreme Court can deal with everything the Provincial Court can as well as everything it can't.

The process of each court is guided by each court's set of rules. The [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] offer a much wider variety of tools and remedies than the [http://canlii.ca/t/85pb Provincial Court Family Rules], particularly in terms of the information and documents each side can make the other produce in the course of a proceeding. For example, the Supreme Court rules allow a party to make the other party submit to an examination for discovery, or make a company or third party produce records. These disclosure mechanisms are not available in the Provincial Court.

You may want to think about the relative complexity of the two courts' sets of rules, particularly if you plan to represent yourself and not hire a lawyer. The Provincial Court's rules are written in plain language and are fairly straightforward. The Supreme Court Family Rules are much more complicated and aren't written in the most easy to understand language.

Finally, you may also want to think about the cost of proceeding in each court. The Provincial Court charges no filing fees and has a relatively streamlined procedure. The Supreme Court charges filing fees, and the extra tools and remedies available under the Supreme Court Family Rules are helpful but will add to the cost of bringing a proceeding to trial.

This chart shows which level of court can deal with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Provincial Court
!style="width: 20%" align="center"|Supreme Court
|-
|align="center"|'''''Divorce Act'''''|| ||align="center"|Yes
|-
|align="center"|'''''Family Law Act'''''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Time with children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''|| ||align="center"|Yes
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''|| ||align="center"|Yes
|-
|align="center"|'''Protection orders'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial restraining orders'''|| ||align="center"|Yes
|}

While it is possible to start an action in the Provincial Court to deal with one or two issues (like parental responsibilities or child support) and later start an action in the Supreme Court to deal with other issues (like dividing family property or divorce) it's usually best to confine yourself to a single court to avoid overlaps and keep things as simple as possible.


==Resources and links==

===Legislation===

* ''[[Divorce Act]]''
* ''[[Family Law Act]]''
* [[Child Support Guidelines]]
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html The Constitution of Canada]''

===Links===

* [http://www.canlii.org CanLII]
* [http://www.provincialcourt.bc.ca/judgments-decisions Decisions of the Provincial Court of British Columbia]
* [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Decisions of the Supreme Court of British Columbia]
* [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Decisions of the Court of Appeal for British Columbia]
* [http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Decisions of the Supreme Court of Canada]
* [http://www.worldcat.org WorldCat]
* [http://www.courthouselibrary.ca/training/videos/FindingCasesOnPoint.aspx Courthouse Libraries BC] (finding case law video tutorial)
* [http://www.canlii.org/en/blog/index.php?/archives/70-One-minute-legal-research-A-student-made-video-series.html CanLII blog] (video tutorials on using CanLII)
* [http://www.courthouselibrary.ca/clientservices/researchers.aspx List of legal research lawyers]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 8, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

You and Your Lawyer

2017-06-08T18:32:18Z

Mark Norton:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/expect_from_lawyer.php what to expect from a lawyer]
}}Lawyers are people with special legal training (and a law degree) who are licensed to practise law by their province's law society. The jobs of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia] are to regulate who can be a lawyer and to protect the public by setting and enforcing standards of professional conduct. Since many people involved in a family law dispute haven't had to deal with lawyers before, this section is about your relationship with your lawyer.

This section provides an overview of the lawyer-client relationship. It discusses how to find and hire a lawyer, how your lawyer bills for his or her services, what you can do if you're not happy with your lawyer, and how you or your lawyer can end the lawyer-client relationship.

==Introduction==

All lawyers in British Columbia are members of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia]. Many are also members of the [http://www.cba.org/ Canadian Bar Association] and local bar associations like the [http://www.vancouverbar.ca/ Vancouver Bar Association], the [http://www.vicbar.com/ Victoria Bar Association] or the [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]. The Law Society's primary purpose is to govern and regulate lawyers to protect the public interest. As officers of the court and as members of the Law Society, lawyers are held to a high standard of conduct.

Your lawyer's primary job is to protect and advance your legal interests. At the same time, your lawyer must follow this high standard of conduct and act at all times in an ethical manner. Lawyers' duties to their clients, to each other and to the courts are governed by:

*the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'',
*the [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules] of the Law Society of British Columbia, and
*the Law Society's [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Code of Professional Conduct].

Boiling all this down a bit, your lawyer performs two key roles. First, your lawyer is like a plumber: if you tell your plumber to install your sink, he or she installs your sink. On the other hand, if you tell your plumber to hook the hot water pipe up to the ice-making machine intake, you'd expect your plumber to give you some common sense advice about why that might be a bad idea. Second, your lawyer is like a champion: your lawyer is your sword and shield, protecting you from some of the more unpleasant and adversarial aspects of litigation while boldly pursuing your claim.

You should expect your lawyer to take the heat for you and fearlessly advance your claim. While you should expect your lawyer to do just what you tell him or her to do, you should also expect your lawyer to give you good advice if your instructions are not in your best interests, and perhaps even refuse to accept your instructions. You should especially expect your lawyer to tell you if what you want to do will be harmful to your case. Your lawyer is not your "friend". They are a professional who should tell you what you need to hear about your case, and offer objective and reasoned, not emotionally motivated guidance. This can be a bit disconcerting to a person experiencing a high level of emotional distress.

Some lawyers are also mediators, arbitrators, and parenting coordinators. Lawyers who act in these roles are not serving as advocates in a traditional lawyer-client relationship; their jobs are much different.

Lawyers who are family law mediators have special, additional training in mediation. Family law mediators do not represent you or your spouse; they are providing mediation services to the both of you, rather than advocacy services for just one of you. Lawyers who act as mediators are neither party's advocate.

Lawyers who are family law arbitrators have special, additional training in arbitration and have to meet other requirements imposed by the Law Society and the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Family law arbitrators are like private judges; their job is to hear the evidence and arguments necessary to decide a problem and then decide the problem by making a decision. Lawyers who act as arbitrators are neither party's advocate; they are neutral decision makers.

Lawyers who are parenting coordinators are trained as mediators and arbitrators, and have a great deal of training on top of that. The sort of services parenting coordinators provide are a blend of mediation and arbitration, with a bit of counselling thrown in. Parenting coordinators help parents deal with parenting disputes when they arise and, if an agreement cannot be reached through a process that's a lot like mediation, then the parenting coordinator will make a decision resolving the issue through a process that's a lot like arbitration. Lawyers who act as parenting coordinators are neither party's advocate. If they're anyone's advocate, they're the children's advocate.

The website of the [http://www.lawsociety.bc.ca Law Society of British Columbia] is an extremely helpful resource for people who have hired a lawyer or people who are thinking of retaining a lawyer. It provides a lot of information about the lawyer-client relationship and about lawyers' ethical duties to their clients.

==Finding and hiring a lawyer==

Sometimes the best way to find a lawyer is the same way you find a family doctor or a school for your children: by word of mouth. Ask your friends, family and co-workers if they've ever used a family law lawyer, and, if so, how they liked that person. Did the lawyer return telephone calls promptly? Did the lawyer keep them up to speed on the progress of their file? Was the lawyer's bill reasonable? Did they feel comfortable with their lawyer? You can also ask your doctor, your accountant or your dentist if they can refer you to someone. Some of the other things you might want to think about when hiring a lawyer are described in the section on [[Separating Emotionally]].

The Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service] is another way to find a lawyer. This service keeps a roster of subscribing lawyers in your area, a list of the areas of law they practise and a list of the languages they speak. Call 604-687-3221 in Vancouver and the Lower Mainland or, elsewhere in British Columbia, call 1-800-663-1919.

Yet another way to find a lawyer is by contacting the Legal Services Society (LSS) for [http://www.clicklaw.bc.ca/helpmap/service/1053 Legal Aid Intake Services]. LSS provides legal aid in British Columbia, and, if you meet their criteria, they will refer you to a lawyer and pay for the lawyer's services to boot. Be warned however, that since the provincial government's catastrophic reduction of funding to LSS in 2002, legal aid will generally only be available for people dealing with situations of family violence or where the abduction of children is a possibility. Go to LSS's website on [http://www.lss.bc.ca/legal_aid/howToApply.php how to apply for legal aid] for more information about their eligibility criteria.

If none of this works out, you can try finding a lawyer through the Yellow Pages or the internet, but only as a last resort. Typing "<tt>vancouver family lawyer</tt>" or "<tt>best divorce lawyer</tt>" into a search engine is a terrible way to find a lawyer; while you'll get a ton of results, you won't know anything about those lawyers except for the things they say about themselves on their websites. The same thing applies to picking a lawyer through a Yellow Pages ad.

Remember that not all lawyers practise family law, of course, and this is something you may want to take into consideration. Some lawyers focus exclusively on family law, so that family law is the whole of their practice; others practise family law along with other areas of the law. If a lawyer advertises in the Yellow Pages or online, the lawyer's ad or website will usually say exactly what area or areas of law he or she practises. You may wish to pay special attention to lawyers who tend to spend all or most of their time on family law matters.

===The first interview===

Once you've gathered the names of a few lawyers who sound promising, make an appointment to meet with each of them. A few lawyers will offer you some of their time for free or at a reduced rate for an initial interview. The lawyers you meet through the Lawyer Referral Service will charge a special reduced fee for a half-hour initial interview. Most lawyers however will bill for initial interviews at their usual hourly rate.

''Do not assume that the lawyer will not charge for his or her time unless the lawyer specifically advertises that he or she offers free initial consultations.'' Expect a bill for the lawyer's time!

Use this first meeting as an opportunity to assess how you feel about each lawyer and how you relate to them; you needn't hire the first lawyer you meet. You are entitled to shop around before you choose the lawyer who is right for you. You can also use your first interview with each lawyer to get that lawyer's take on your problem. Tell him or her about your problem concisely, and let the lawyer ask questions which pull out the details of your problem.

Don't be shy about asking lawyers about their hourly rates, how they will bill you, and what sort of disbursements (a lawyer's out-of-pocket expenses for things like photocopying and filing fees) the lawyer will expect that you pay for. Ask what sort of retainer they will require, what their interest rate is on overdue accounts, and whether they will be charging you any additional fees based on their success or the complexity of your problem. Ask whether anyone else in his or her firm will be working on your file, whether you will be billed for their work, and maybe ask to meet them too.

(If you're meeting with a lawyer who also works as a family law mediator or family law arbitrator, and you're thinking of hiring him or her to act in that capacity, you don't want to give the lawyer too many details about your situation. Family law mediators and family law arbitrators must be neutral and impartial. Too much information from just one of you may make the lawyer unable to help resolve your dispute.)

For a summary guide to your first interview with a lawyer, see [[How Do I Prepare for My First Meeting with a Lawyer?]] It's located in the ''How Do I?'' part of this resource in the ''Miscellaneous'' section.

===Hiring your lawyer===

Once you've picked a lawyer you like and have decided to hire him or her, your lawyer will require you to sign a retainer agreement and give him or her a deposit towards your first of couple of bills. Hiring a lawyer is called ''retaining'' a lawyer. A ''retainer agreement'' is a contract between your lawyer and yourself that you each must sign, and which sets out the legal and financial aspects of your relationship to each other. Read the agreement carefully! If there are any terms you don't understand, be sure to ask your lawyer, and, likewise, if you object to any of the terms of the agreement, express your objection and ask how your concern might be addressed. A ''retainer'' is a sum of money you will likely be asked to give as a deposit against your lawyer's future services and fees.

Never hesitate to tell your lawyer about any concerns you have about his or her bills or services.

(A family law mediator will ask you to sign an Agreement to Mediate rather than the usual retainer agreement. The Agreement to Mediate will set out the details of the mediator's rate and expectations about payment, and how each mediation session will be paid for. The same thing applies to family law arbitrators. Parenting coordinators will want you to sign a Parenting Coordination Agreement, and will usually ask for both a retainer and a fee deposit.)

==How your lawyer charges you==

You should discuss with your lawyer, at the very first meeting, exactly how the lawyer will bill you for his or her time and for the expenses the lawyer incurs in working on your file. Most lawyers will bring this up on their own, but if your lawyer happens to forget to talk about it, you should bring it up. Don't be shy. You will, at a minimum, want to know what the lawyer's hourly rate is and what the lawyer's expectations are regarding payment of each account.

===Your retainer===

In British Columbia, family law lawyers cannot work on a contingency basis — for a percentage of the client's award or settlement — which is how some other lawyers, like personal injury lawyers, often get paid. Family law lawyers bill for their services by the hour, although some may bill on fixed, flat-rate for smaller tasks where the scope of the lawyer's services is clearly limited.

Family law lawyers will usually expect to be paid some money up front, called a retainer. While some family law lawyers will agree to be paid from the proceeds of the sale of an asset following trial, most often they'll expect to be paid by an initial retainer followed by additional retainer payments or a monthly billing process.

The amount you pay as your retainer is held by your lawyer in trust. Your lawyer will withdraw money from the retainer each time he or she bills you. After a couple of bills or more have been paid from the retainer, the retainer may be exhausted. At that point your lawyer will usually ask you for another retainer, or your lawyer may simply bill you directly each month. On the other hand, if your problem is resolved more quickly than was expected or if you fire your lawyer, you will be entitled to a refund of however much of the retainer is left over.

The terms of how your lawyer will bill you will be set out in your retainer agreement. This is one of the reasons why it is essential that you read the agreement carefully before you sign it. Note that lawyers' fees are subject to PST and GST. Mediators' fees and parenting coordinators' fees are subject to just GST.

===Reviewing your lawyer's bill===

Both you and your lawyer have the right to have the lawyer's bills reviewed for fairness under the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'' to fix a final amount owing. The fee review is performed by a registrar or master of the Supreme Court at a formal hearing in court.

At this hearing, the registrar will be presented with the lawyer's bills to you, and any other supporting documents, such as a time diary, a statement of the lawyer's charges to your bill by the amount of time spent on each task on a day-by-day basis, and the documents and correspondence that were generated over the course of the lawyer's services to you. Your lawyer will attempt to satisfy the registrar that his or her fees were reasonable and that the amounts billed for disbursements were reasonable. The registrar will look at the bills and apply a number of considerations in arriving at his or her decision, including:

*the value and importance of the results obtained,
*the complexity or novelty of the issues,
*whether the time spent was reasonable, and
*whether your lawyer's hourly rate was reasonable.

You will, of course, have the opportunity to present your side of the case and dispute your lawyer's bill as you see fit.

After hearing all the evidence, the registrar will issue a ''Certificate of Fees'' which sets out the amount of fees and disbursements that the registrar has approved as reasonable. That becomes the amount you owe to your lawyer for his or her services, and, in some cases, the amount of the refund your lawyer owes you. Most importantly, the Certificate of Fees has the same standing as a court judgment and can be used as such to enforce the amount owing to the lawyer or the amount owed by the lawyer to you.

As an alternative to a review under the ''Legal Profession Act'', the Law Society operates a [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Fee Mediation Program]. This is an informal process for dealing with fee disputes without having to go to court.

===Tax deductions for legal fees===

The portion of a lawyer's bill attributable to obtaining or enforcing an order for child support or spousal support is tax deductible. The cost of defending a claim for spousal support or child support is not deductible.

To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of his or her fees were attributable to advancing a spousal or child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case. Lawyers do not keep track of things like this automatically, mostly because it involves extra work and cost to the client that may outweigh the tax benefit.

If you don't ask your lawyer about this at the beginning of his or her retainer, it may be impossible to winnow out the parts of the lawyer's bills that were dedicated to support issues, and the cost of the time your lawyer spent reviewing your file. His or her bills to figure this out may cost more than the deduction you will get.

==If you are dissatisfied==

If you are concerned about how your file is being handled or have a complaint about your lawyer, you should first of all discuss the matter with your lawyer. This may not always be appropriate. You may wish to contact the Law Society before you speak with your lawyer. Most lawyers, however, are deeply concerned about the satisfaction of their clients, and will go out of their way to fix, or at least explain, any problem you might be experiencing.

The Law Society exists to govern the legal profession for the benefit of the public. It is not the lawyer's friend or ally. You have the right to bring a complaint to the Law Society about a lawyer's actions or lack of action. You can contact the Law Society at:

<blockquote>The Law Society of British Columbia 
845 Cambie Street 
Vancouver, British Columbia 
V6B 4Z9 
  
Telephone 604-669-2533 or 1-800-903-5300 
Facsimile 604-669-5232</blockquote>

There is no charge to speak to one of the Law Society's complaints officers and you do not need to hire a lawyer to make a complaint or begin the complaints process.

==Ending the lawyer-client relationship==

You or your lawyer can end your working relationship; you can fire your lawyer and your lawyer can fire you. From a lawyer's point of view, neither event occurs particularly often, but it does happen.

===Firing your lawyer===

Clients usually want to fire their lawyers when they're unhappy with the service they're receiving. You can fire your lawyer simply by sending him or her a letter to that effect or giving your lawyer a call, though you will no doubt want to phrase a bit more nicely than "I'm firing you." The lawyer-client relationship is a business relationship, and you can terminate this relationship any time you wish.

Of course, there will be some things left to deal with after you've given your lawyer the news.

First, you'll have to pay your outstanding account, if there is one. If you disagree with the amount charged, you can apply to the court to have your lawyer's bill reviewed, which is described in more detail above. On the other hand, if there's still money in your retainer, that's your money and you can ask to have it sent back to you.

Then there's the matter of your file. If your case is still on-going, you'll need to get your file. If you've hired another lawyer, your lawyer will normally just send it to your new counsel; if you haven't, you're entitled to ask that your lawyer send it straight to you. Of course, there may be a slight problem if you still owe money to your lawyer. If you still owe money, your lawyer is entitled to keep your file until his or her account is paid in full. In the right circumstances, your lawyer may agree to transfer your file to your new lawyer on the new lawyer's promise to make sure that the bill gets paid when the file concludes.

===When your lawyer fires you===

This really doesn't happen all that frequently. Most often, a lawyer will fire his or her client for one of the following reasons:

*an account is unpaid and there is a low likelihood that the account will get paid,
*the client refuses to give reasonable instructions or follow the lawyer's advice, or
*the trust aspect of the lawyer-client relationship has broken down.

If your lawyer fires you, he or she will normally do so in a letter detailing the reason why he or she can no longer act for you and highlighting any important dates that are upcoming in your case. Most lawyers will also recommend other lawyers you may wish to consider retaining in his or her place.

After you've been fired, the same concerns arise as if you'd fired your lawyer. The lawyer will be concerned about an outstanding account and you will want your file back, or at least transferred to a new lawyer. As far as your outstanding account is concerned, it's important to know that your lawyer can have his or her own bill reviewed under the ''Legal Profession Act'' to get a judgment about the amount owing; that's something both of you can do.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]''

===Links===

* [http://www.lawsociety.bc.ca/ Law Society of British Columbia]
* [http://www.cba.org/ Canadian Bar Association]
* [http://www.vancouverbar.ca/ Vancouver Bar Association]
* [http://www.vicbar.com/ Victoria Bar Association]
* [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]
* [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Law Society of BC Rules]
* [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Law Society's Code of Professional Conduct]
* [http://www.ag.gov.bc.ca/legislation/family-law/regs-explained.htm Family Law Act Regulations Explained – Ministry of Justice website]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service]
* [http://www.clicklaw.bc.ca/helpmap/service/1053 LSS Legal Aid Intake Services]
* [http://www.lss.bc.ca/legal_aid/howToApply.php LSS's website on how to apply for legal aid]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Law Society Fee Mediation Program]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 8, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

You and Your Lawyer

2017-06-08T18:31:16Z

Mark Norton: Addition to what your lawyer is. Not your friend but and advisor.

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/expect_from_lawyer.php what to expect from a lawyer]
}}Lawyers are people with special legal training (and a law degree) who are licensed to practise law by their province's law society. The jobs of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia] are to regulate who can be a lawyer and to protect the public by setting and enforcing standards of professional conduct. Since many people involved in a family law dispute haven't had to deal with lawyers before, this section is about your relationship with your lawyer.

This section provides an overview of the lawyer-client relationship. It discusses how to find and hire a lawyer, how your lawyer bills for his or her services, what you can do if you're not happy with your lawyer, and how you or your lawyer can end the lawyer-client relationship.

==Introduction==

All lawyers in British Columbia are members of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia]. Many are also members of the [http://www.cba.org/ Canadian Bar Association] and local bar associations like the [http://www.vancouverbar.ca/ Vancouver Bar Association], the [http://www.vicbar.com/ Victoria Bar Association] or the [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]. The Law Society's primary purpose is to govern and regulate lawyers to protect the public interest. As officers of the court and as members of the Law Society, lawyers are held to a high standard of conduct.

Your lawyer's primary job is to protect and advance your legal interests. At the same time, your lawyer must follow this high standard of conduct and act at all times in an ethical manner. Lawyers' duties to their clients, to each other and to the courts are governed by:

*the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'',
*the [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules] of the Law Society of British Columbia, and
*the Law Society's [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Code of Professional Conduct].

Boiling all this down a bit, your lawyer performs two key roles. First, your lawyer is like a plumber: if you tell your plumber to install your sink, he or she installs your sink. On the other hand, if you tell your plumber to hook the hot water pipe up to the ice-making machine intake, you'd expect your plumber to give you some common sense advice about why that might be a bad idea. Second, your lawyer is like a champion: your lawyer is your sword and shield, protecting you from some of the more unpleasant and adversarial aspects of litigation while boldly pursuing your claim.

You should expect your lawyer to take the heat for you and fearlessly advance your claim. While you should expect your lawyer to do just what you tell him or her to do, you should also expect your lawyer to give you good advice if your instructions are not in your best interests, and perhaps even refuse to accept your instructions. You should especially expect your lawyer to tell you if what you want to do will be harmful to your case. Your lawyer is not your "friend". They are a professional who should tell you what you need to hear about your case, and offer objective and reasoned, not emotionally motivated guidance. This can be a bit disconcerting to a person experiencing a high level of emotional distress.

Some lawyers are also mediators, arbitrators, and parenting coordinators. Lawyers who act in these roles are not serving as advocates in a traditional lawyer-client relationship; their jobs are much different.

Lawyers who are family law mediators have special, additional training in mediation. Family law mediators do not represent you or your spouse; they are providing mediation services to the both of you, rather than advocacy services for just one of you. Lawyers who act as mediators are neither party's advocate.

Lawyers who are family law arbitrators have special, additional training in arbitration and have to meet other requirements imposed by the Law Society and the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Family law arbitrators are like private judges; their job is to hear the evidence and arguments necessary to decide a problem and then decide the problem by making a decision. Lawyers who act as arbitrators are neither party's advocate; they are neutral decision makers.

Lawyers who are parenting coordinators are trained as mediators and arbitrators, and have a great deal of training on top of that. The sort of services parenting coordinators provide are a blend of mediation and arbitration, with a bit of counselling thrown in. Parenting coordinators help parents deal with parenting disputes when they arise and, if an agreement cannot be reached through a process that's a lot like mediation, then the parenting coordinator will make a decision resolving the issue through a process that's a lot like arbitration. Lawyers who act as parenting coordinators are neither party's advocate. If they're anyone's advocate, they're the children's advocate.

The website of the [http://www.lawsociety.bc.ca Law Society of British Columbia] is an extremely helpful resource for people who have hired a lawyer or people who are thinking of retaining a lawyer. It provides a lot of information about the lawyer-client relationship and about lawyers' ethical duties to their clients.

==Finding and hiring a lawyer==

Sometimes the best way to find a lawyer is the same way you find a family doctor or a school for your children: by word of mouth. Ask your friends, family and co-workers if they've ever used a family law lawyer, and, if so, how they liked that person. Did the lawyer return telephone calls promptly? Did the lawyer keep them up to speed on the progress of their file? Was the lawyer's bill reasonable? Did they feel comfortable with their lawyer? You can also ask your doctor, your accountant or your dentist if they can refer you to someone. Some of the other things you might want to think about when hiring a lawyer are described in the section on [[Separating Emotionally]].

The Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service] is another way to find a lawyer. This service keeps a roster of subscribing lawyers in your area, a list of the areas of law they practise and a list of the languages they speak. Call 604-687-3221 in Vancouver and the Lower Mainland or, elsewhere in British Columbia, call 1-800-663-1919.

Yet another way to find a lawyer is by contacting the Legal Services Society (LSS) for [http://www.clicklaw.bc.ca/helpmap/service/1053 Legal Aid Intake Services]. LSS provides legal aid in British Columbia, and, if you meet their criteria, they will refer you to a lawyer and pay for the lawyer's services to boot. Be warned however, that since the provincial government's catastrophic reduction of funding to LSS in 2002, legal aid will generally only be available for people dealing with situations of family violence or where the abduction of children is a possibility. Go to LSS's website on [http://www.lss.bc.ca/legal_aid/howToApply.php how to apply for legal aid] for more information about their eligibility criteria.

If none of this works out, you can try finding a lawyer through the Yellow Pages or the internet, but only as a last resort. Typing "<tt>vancouver family lawyer</tt>" or "<tt>best divorce lawyer</tt>" into a search engine is a terrible way to find a lawyer; while you'll get a ton of results, you won't know anything about those lawyers except for the things they say about themselves on their websites. The same thing applies to picking a lawyer through a Yellow Pages ad.

Remember that not all lawyers practise family law, of course, and this is something you may want to take into consideration. Some lawyers focus exclusively on family law, so that family law is the whole of their practice; others practise family law along with other areas of the law. If a lawyer advertises in the Yellow Pages or online, the lawyer's ad or website will usually say exactly what area or areas of law he or she practises. You may wish to pay special attention to lawyers who tend to spend all or most of their time on family law matters.

===The first interview===

Once you've gathered the names of a few lawyers who sound promising, make an appointment to meet with each of them. A few lawyers will offer you some of their time for free or at a reduced rate for an initial interview. The lawyers you meet through the Lawyer Referral Service will charge a special reduced fee for a half-hour initial interview. Most lawyers however will bill for initial interviews at their usual hourly rate.

''Do not assume that the lawyer will not charge for his or her time unless the lawyer specifically advertises that he or she offers free initial consultations.'' Expect a bill for the lawyer's time!

Use this first meeting as an opportunity to assess how you feel about each lawyer and how you relate to them; you needn't hire the first lawyer you meet. You are entitled to shop around before you choose the lawyer who is right for you. You can also use your first interview with each lawyer to get that lawyer's take on your problem. Tell him or her about your problem concisely, and let the lawyer ask questions which pull out the details of your problem.

Don't be shy about asking lawyers about their hourly rates, how they will bill you, and what sort of disbursements (a lawyer's out-of-pocket expenses for things like photocopying and filing fees) the lawyer will expect that you pay for. Ask what sort of retainer they will require, what their interest rate is on overdue accounts, and whether they will be charging you any additional fees based on their success or the complexity of your problem. Ask whether anyone else in his or her firm will be working on your file, whether you will be billed for their work, and maybe ask to meet them too.

(If you're meeting with a lawyer who also works as a family law mediator or family law arbitrator, and you're thinking of hiring him or her to act in that capacity, you don't want to give the lawyer too many details about your situation. Family law mediators and family law arbitrators must be neutral and impartial. Too much information from just one of you may make the lawyer unable to help resolve your dispute.)

For a summary guide to your first interview with a lawyer, see [[How Do I Prepare for My First Meeting with a Lawyer?]] It's located in the ''How Do I?'' part of this resource in the ''Miscellaneous'' section.

===Hiring your lawyer===

Once you've picked a lawyer you like and have decided to hire him or her, your lawyer will require you to sign a retainer agreement and give him or her a deposit towards your first of couple of bills. Hiring a lawyer is called ''retaining'' a lawyer. A ''retainer agreement'' is a contract between your lawyer and yourself that you each must sign, and which sets out the legal and financial aspects of your relationship to each other. Read the agreement carefully! If there are any terms you don't understand, be sure to ask your lawyer, and, likewise, if you object to any of the terms of the agreement, express your objection and ask how your concern might be addressed. A ''retainer'' is a sum of money you will likely be asked to give as a deposit against your lawyer's future services and fees.

Never hesitate to tell your lawyer about any concerns you have about his or her bills or services.

(A family law mediator will ask you to sign an Agreement to Mediate rather than the usual retainer agreement. The Agreement to Mediate will set out the details of the mediator's rate and expectations about payment, and how each mediation session will be paid for. The same thing applies to family law arbitrators. Parenting coordinators will want you to sign a Parenting Coordination Agreement, and will usually ask for both a retainer and a fee deposit.)

==How your lawyer charges you==

You should discuss with your lawyer, at the very first meeting, exactly how the lawyer will bill you for his or her time and for the expenses the lawyer incurs in working on your file. Most lawyers will bring this up on their own, but if your lawyer happens to forget to talk about it, you should bring it up. Don't be shy. You will, at a minimum, want to know what the lawyer's hourly rate is and what the lawyer's expectations are regarding payment of each account.

===Your retainer===

In British Columbia, family law lawyers cannot work on a contingency basis — for a percentage of the client's award or settlement — which is how some other lawyers, like personal injury lawyers, often get paid. Family law lawyers bill for their services by the hour, although some may bill on fixed, flat-rate for smaller tasks where the scope of the lawyer's services is clearly limited.

Family law lawyers will usually expect to be paid some money up front, called a retainer. While some family law lawyers will agree to be paid from the proceeds of the sale of an asset following trial, most often they'll expect to be paid by an initial retainer followed by additional retainer payments or a monthly billing process.

The amount you pay as your retainer is held by your lawyer in trust. Your lawyer will withdraw money from the retainer each time he or she bills you. After a couple of bills or more have been paid from the retainer, the retainer may be exhausted. At that point your lawyer will usually ask you for another retainer, or your lawyer may simply bill you directly each month. On the other hand, if your problem is resolved more quickly than was expected or if you fire your lawyer, you will be entitled to a refund of however much of the retainer is left over.

The terms of how your lawyer will bill you will be set out in your retainer agreement. This is one of the reasons why it is essential that you read the agreement carefully before you sign it. Note that lawyers' fees are subject to PST and GST. Mediators' fees and parenting coordinators' fees are subject to just GST.

===Reviewing your lawyer's bill===

Both you and your lawyer have the right to have the lawyer's bills reviewed for fairness under the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'' to fix a final amount owing. The fee review is performed by a registrar or master of the Supreme Court at a formal hearing in court.

At this hearing, the registrar will be presented with the lawyer's bills to you, and any other supporting documents, such as a time diary, a statement of the lawyer's charges to your bill by the amount of time spent on each task on a day-by-day basis, and the documents and correspondence that were generated over the course of the lawyer's services to you. Your lawyer will attempt to satisfy the registrar that his or her fees were reasonable and that the amounts billed for disbursements were reasonable. The registrar will look at the bills and apply a number of considerations in arriving at his or her decision, including:

*the value and importance of the results obtained,
*the complexity or novelty of the issues,
*whether the time spent was reasonable, and
*whether your lawyer's hourly rate was reasonable.

You will, of course, have the opportunity to present your side of the case and dispute your lawyer's bill as you see fit.

After hearing all the evidence, the registrar will issue a ''Certificate of Fees'' which sets out the amount of fees and disbursements that the registrar has approved as reasonable. That becomes the amount you owe to your lawyer for his or her services, and, in some cases, the amount of the refund your lawyer owes you. Most importantly, the Certificate of Fees has the same standing as a court judgment and can be used as such to enforce the amount owing to the lawyer or the amount owed by the lawyer to you.

As an alternative to a review under the ''Legal Profession Act'', the Law Society operates a [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Fee Mediation Program]. This is an informal process for dealing with fee disputes without having to go to court.

===Tax deductions for legal fees===

The portion of a lawyer's bill attributable to obtaining or enforcing an order for child support or spousal support is tax deductible. The cost of defending a claim for spousal support or child support is not deductible.

To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of his or her fees were attributable to advancing a spousal or child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case. Lawyers do not keep track of things like this automatically, mostly because it involves extra work and cost to the client that may outweigh the tax benefit.

If you don't ask your lawyer about this at the beginning of his or her retainer, it may be impossible to winnow out the parts of the lawyer's bills that were dedicated to support issues, and the cost of the time your lawyer spent reviewing your file. His or her bills to figure this out may cost more than the deduction you will get.

==If you are dissatisfied==

If you are concerned about how your file is being handled or have a complaint about your lawyer, you should first of all discuss the matter with your lawyer. This may not always be appropriate. You may wish to contact the Law Society before you speak with your lawyer. Most lawyers, however, are deeply concerned about the satisfaction of their clients, and will go out of their way to fix, or at least explain, any problem you might be experiencing.

The Law Society exists to govern the legal profession for the benefit of the public. It is not the lawyer's friend or ally. You have the right to bring a complaint to the Law Society about a lawyer's actions or lack of action. You can contact the Law Society at:

<blockquote>The Law Society of British Columbia 
845 Cambie Street 
Vancouver, British Columbia 
V6B 4Z9 
  
Telephone 604-669-2533 or 1-800-903-5300 
Facsimile 604-669-5232</blockquote>

There is no charge to speak to one of the Law Society's complaints officers and you do not need to hire a lawyer to make a complaint or begin the complaints process.

==Ending the lawyer-client relationship==

You or your lawyer can end your working relationship; you can fire your lawyer and your lawyer can fire you. From a lawyer's point of view, neither event occurs particularly often, but it does happen.

===Firing your lawyer===

Clients usually want to fire their lawyers when they're unhappy with the service they're receiving. You can fire your lawyer simply by sending him or her a letter to that effect or giving your lawyer a call, though you will no doubt want to phrase a bit more nicely than "I'm firing you." The lawyer-client relationship is a business relationship, and you can terminate this relationship any time you wish.

Of course, there will be some things left to deal with after you've given your lawyer the news.

First, you'll have to pay your outstanding account, if there is one. If you disagree with the amount charged, you can apply to the court to have your lawyer's bill reviewed, which is described in more detail above. On the other hand, if there's still money in your retainer, that's your money and you can ask to have it sent back to you.

Then there's the matter of your file. If your case is still on-going, you'll need to get your file. If you've hired another lawyer, your lawyer will normally just send it to your new counsel; if you haven't, you're entitled to ask that your lawyer send it straight to you. Of course, there may be a slight problem if you still owe money to your lawyer. If you still owe money, your lawyer is entitled to keep your file until his or her account is paid in full. In the right circumstances, your lawyer may agree to transfer your file to your new lawyer on the new lawyer's promise to make sure that the bill gets paid when the file concludes.

===When your lawyer fires you===

This really doesn't happen all that frequently. Most often, a lawyer will fire his or her client for one of the following reasons:

*an account is unpaid and there is a low likelihood that the account will get paid,
*the client refuses to give reasonable instructions or follow the lawyer's advice, or
*the trust aspect of the lawyer-client relationship has broken down.

If your lawyer fires you, he or she will normally do so in a letter detailing the reason why he or she can no longer act for you and highlighting any important dates that are upcoming in your case. Most lawyers will also recommend other lawyers you may wish to consider retaining in his or her place.

After you've been fired, the same concerns arise as if you'd fired your lawyer. The lawyer will be concerned about an outstanding account and you will want your file back, or at least transferred to a new lawyer. As far as your outstanding account is concerned, it's important to know that your lawyer can have his or her own bill reviewed under the ''Legal Profession Act'' to get a judgment about the amount owing; that's something both of you can do.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]''

===Links===

* [http://www.lawsociety.bc.ca/ Law Society of British Columbia]
* [http://www.cba.org/ Canadian Bar Association]
* [http://www.vancouverbar.ca/ Vancouver Bar Association]
* [http://www.vicbar.com/ Victoria Bar Association]
* [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]
* [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Law Society of BC Rules]
* [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Law Society's Code of Professional Conduct]
* [http://www.ag.gov.bc.ca/legislation/family-law/regs-explained.htm Family Law Act Regulations Explained – Ministry of Justice website]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service]
* [http://www.clicklaw.bc.ca/helpmap/service/1053 LSS Legal Aid Intake Services]
* [http://www.lss.bc.ca/legal_aid/howToApply.php LSS's website on how to apply for legal aid]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Law Society Fee Mediation Program]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T18:26:30Z

Mark Norton:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms)and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply (Form 3); the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired) and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made. The timelines for appeals are strictly applied.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim (Form F3 of the Supreme Court Family Forms). The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition (Form F73). Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim (Form F4). A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim (Form F5). A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30). An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response (Form F32) and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial officials at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters can deal with a wide variety of applications in Supreme Court Chambers. They deal with mainly interim applications. Justices can also hear interim applications but also conduct trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires '''strict compliance''' with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal (Court of Appeal Forms - Form 7) or, depending on the circumstances, a Notice of Application for Leave to Appeal (Form 1), and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal (Form 8); this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 6) and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. Applications for leave are heard before one judge. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 8, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T18:25:51Z

Mark Norton: Changing Form reference. Making note that leave applications are before 1 judge

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms)and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply (Form 3); the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired) and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made. The timelines for appeals are strictly applied.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim (Form F3 of the Supreme Court Family Forms). The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition (Form F73). Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim (Form F4). A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim (Form F5). A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30). An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response (Form F32) and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial officials at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters can deal with a wide variety of applications in Supreme Court Chambers. They deal with mainly interim applications. Justices can also hear interim applications but also conduct trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires '''strict compliance''' with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal (Court of Appeal Forms - Form 7) or, depending on the circumstances, a Notice of Application for Leave to Appeal (Form 1), and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal (Form 8); this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 6) and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. Applications for leave are heard before one judge. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T18:11:23Z

Mark Norton: taking out reference that a Master is like Prov. Court judge - not the case.

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms)and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply (Form 3); the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired) and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made. The timelines for appeals are strictly applied.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim (Form F3 of the Supreme Court Family Forms). The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition (Form F73). Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim (Form F4). A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim (Form F5). A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30). An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response (Form F32) and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial officials at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters can deal with a wide variety of applications in Supreme Court Chambers. They deal with mainly interim applications. Justices can also hear interim applications but also conduct trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T18:04:13Z

Mark Norton: Changing how Forms are referred to. Clarifying that Forms are the Supreme Court Family Forms

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms)and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply (Form 3); the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired) and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made. The timelines for appeals are strictly applied.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim (Form F3 of the Supreme Court Family Forms). The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition (Form F73). Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim (Form F4). A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim (Form F5). A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30). An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response (Form F32) and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T18:01:06Z

Mark Norton:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms)and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply (Form 3); the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired) and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made. The timelines for appeals are strictly applied.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T17:59:52Z

Mark Norton:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms)and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply (Form 3); the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired) and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T17:56:07Z

Mark Norton: Changed the style of how forms referred to.

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms)and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply in Form 3; the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired) and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T17:50:27Z

Mark Norton: changed some language, removed a setence that was somewhat odd and confusing about multiple proceedings

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

==The Provincial Court==

The Provincial Court is usually the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also a lot more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order in Form 1 and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply in Form 3; the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 16. It is always best to file an Affidavit in Form 17 with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order in Form 2 and serving on the other parties. The other parties have 30 days to reply by filing a Reply in Form 3.

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

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[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2017-06-08T17:47:21Z

Mark Norton:

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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. It is important to know the law and your rights.

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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction of the Provincial Court narrower than the Supreme Court. The Provincial Court deals only 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 valued between $5001 to $35,000, and Family Court cannot deal with claims involving family property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

The decision of the judge at the trial can be challenged to a designated court of review. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

An appeal court very rarely hears new evidence or makes 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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]] on June 8, 2017}}

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[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2017-06-08T17:46:56Z

Mark Norton:

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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. It is important to know the law and your rights.

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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction of the Provincial Court narrower than the Supreme Court. The Provincial Court deals only 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 valued between $5001 to $35,000, and Family Court cannot deal with claims involving family property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

The decision of the judge at the trial can be challenged to a designated court of review. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

An appeal court very rarely hears new evidence or makes 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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 8, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2017-06-08T17:46:27Z

Mark Norton:

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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. It is important to know the law and your rights.

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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction of the Provincial Court narrower than the Supreme Court. The Provincial Court deals only 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 valued between $5001 to $35,000, and Family Court cannot deal with claims involving family property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

The decision of the judge at the trial can be challenged to a designated court of review. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

An appeal court very rarely hears new evidence or makes 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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Bob Mostar] and [[Mark Norton]], June 8, 2017}}

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Understanding the Legal System for Family Law Matters

2017-06-08T17:44:57Z

Mark Norton: Change some language and updated the small claims reference to reflect current change in small claims system

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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. It is important to know the law and your rights.

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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction of the Provincial Court narrower than the Supreme Court. The Provincial Court deals only 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 valued between $5001 to $35,000, and Family Court cannot deal with claims involving family property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

The decision of the judge at the trial can be challenged to a designated court of review. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

An appeal court very rarely hears new evidence or makes 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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

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[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2017-06-08T17:39:16Z

Mark Norton:

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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. It is important to know the law and your rights.

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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction 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 property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

The decision of the judge at the trial can be challenged to a designated court of review. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

An appeal court very rarely hears new evidence or makes 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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T16:37:40Z

Mark Norton: change some language - addressed past complaint of a contributor about the "belittling" language towards Prov court

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for common activities, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. However it can be confusing to manage two court proceedings, and you have to be careful not to bring up issues in one court that are being dealt with by the other court.

==The Provincial Court==

The Provincial Court is usually the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also a lot more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order in Form 1 and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply in Form 3; the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 16. It is always best to file an Affidavit in Form 17 with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order in Form 2 and serving on the other parties. The other parties have 30 days to reply by filing a Reply in Form 3.

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T16:33:32Z

Mark Norton:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition got heard, and not all did, the king would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them, called judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the lowest level of court and the Court of Appeal being the highest. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court can only deal with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for common activities, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. However it can be confusing to manage two court proceedings, and you have to be careful not to bring up issues in one court that are being dealt with by the other court.

==The Provincial Court==

The Provincial Court is usually the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also a lot more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order in Form 1 and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply in Form 3; the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 16. It is always best to file an Affidavit in Form 17 with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order in Form 2 and serving on the other parties. The other parties have 30 days to reply by filing a Reply in Form 3.

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2017-06-08T16:32:40Z

Mark Norton:

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition got heard, and not all did, the king would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them, called judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the lowest level of court and the Court of Appeal being the highest. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court can only deal with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for common activities, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. However it can be confusing to manage two court proceedings, and you have to be careful not to bring up issues in one court that are being dealt with by the other court.

==The Provincial Court==

The Provincial Court is usually the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also a lot more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order in Form 1 and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply in Form 3; the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 16. It is always best to file an Affidavit in Form 17 with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order in Form 2 and serving on the other parties. The other parties have 30 days to reply by filing a Reply in Form 3.

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Don Kawano|Don Kawano, QC]] and [[Mark Norton]], September 18, 2014}}

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[[Category:JP Boyd on Family Law]]

Further Topics and Overlapping Legal Issues in Family Law

2017-06-08T16:08:44Z

Mark Norton: /* Resources and links */

{{JPBOFL Start Chapter
| Related =
[[Naming and Changes of Name]]
}}
{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the wills and estates law and what happens when people and property are located in different legal jurisdictions.

==Wills and estates issues==

''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of WESA).

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.

==The conflict of laws==

The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

===Children===

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:

#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.

===Child support and spousal support===

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Once this is done that newly "registered" order can be enforced as if it was a British Columbia order by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.

===Property and debt===

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Mark Norton]], June 8, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Further Topics and Overlapping Legal Issues in Family Law

2017-06-08T16:03:05Z

Mark Norton:

{{JPBOFL Start Chapter
| Related =
[[Naming and Changes of Name]]
}}
{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the wills and estates law and what happens when people and property are located in different legal jurisdictions.

==Wills and estates issues==

''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of WESA).

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.

==The conflict of laws==

The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

===Children===

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:

#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.

===Child support and spousal support===

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Once this is done that newly "registered" order can be enforced as if it was a British Columbia order by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.

===Property and debt===

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 8, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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Further Topics and Overlapping Legal Issues in Family Law

2017-06-08T15:59:32Z

Mark Norton:

{{JPBOFL Start Chapter
| Related =
[[Naming and Changes of Name]]
}}
{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the wills and estates law and what happens when people and property are located in different legal jurisdictions.

==Wills and estates issues==

''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of WESA).

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.

==The conflict of laws==

The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

===Children===

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:

#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.

===Child support and spousal support===

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.

===Property and debt===

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 8, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Further Topics and Overlapping Legal Issues in Family Law

2017-06-08T15:55:58Z

Mark Norton: changed dead person to deceased person. inserted referece to will challanges being called wills variation. pointed out WESA sections on intestacy

{{JPBOFL Start Chapter
| Related =
[[Naming and Changes of Name]]
}}
{{JP Boyd on Family Law TOC|expanded = overlapping}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
}}
Problems like children's parenting arrangements, the payment of support, and the division of property are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.

This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the wills and estates law and what happens when people and property are located in different legal jurisdictions.

==Wills and estates issues==

''Wills and estates'' refers to the area of law that deals with the drafting and interpretation of wills, how a deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

Making, changing, revoking, and enforcing wills are governed by the provincial ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]'' ("WESA"). Section 37 sets out the basic requirements for a valid will:

<blockquote><tt>'''37''' (1) To be valid, a will must be</tt></blockquote>

<blockquote><blockquote><tt>(a) in writing,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) signed by 2 or more witnesses in the presence of the will-maker.</tt></blockquote></blockquote>

British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die ''intestate''. If a person dies intestate, their assets are dealt with according to the terms of WESA. This law requires a person's estate to be distributed in a certain way, with the surviving spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of WESA).

If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or in a marriage-like relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.

If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.

==The conflict of laws==

The ''conflict of laws'' refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:

*spouses have property in different provinces or countries,
*the courts of one jurisdiction have made an order and one or both of the parties have moved to a different jurisdiction, or
*the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.

The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.

===Children===

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about children has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:

#either spouse normally lives in this province, or
#both spouses agree that our courts should deal with the matter.

Since the ''Divorce Act'' applies to the whole of Canada, ''Divorce Act'' orders have effect throughout Canada. An order made under the ''Divorce Act'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k Children's Law Reform Act]'' of Ontario, or the laws of another country altogether, the order can be ''recognized'' by the courts of British Columbia under s. 75 of our ''[[Family Law Act]]''. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.

Under Division 7 of Part 4 of the ''[[Family Law Act]]'', the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:

#the child normally lives in British Columbia, or
#the child is physically present in the province but will be at serious risk unless the original order is changed.

===Child support and spousal support===

Different rules apply when orders about support are made outside of British Columbia under the federal ''[[Divorce Act]]'', outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.

====''Divorce Act'' orders====

When a court order about support has been made under the ''[[Divorce Act]]'', a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a ''provisional order'' which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a ''confirmation hearing'' under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the [[Making_Changes_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|Orders made outside British Columbia]]."

An order for child support or spousal support made under the ''[[Divorce Act]]'' may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.

====Other orders made outside British Columbia====

Where a support order was made under the law of another province or territory, the order can be ''registered'' in the courts of British Columbia under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'', and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the ''recipient'', under the ''[[Family Law Act]]'', or by the recipient and the Family Maintenance Enforcement Program under the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

The ''Interjurisdictional Support Orders Act'' also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the ''Interjurisdictional Support Orders Act'' also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.

===Property and debt===

The ''[[Family Law Act]]'' is the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.

Under s. 106 of the ''Family Law Act'', where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:

*the person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'',
*the parties agree that the court should deal with the claim,
*either party was "habitually resident" in the province when the court proceeding started, or
*there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the ''[[Divorce Act]]'' has been started here.

If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:

*dividing property here to take into account the value of the property outside the province,
*making orders about respecting the care, management, or use of the property outside the province, and
*making orders about ownership of the property outside the province.

More information about how the ''Family Law Act'' deals with property outside of British Columbia is available in the [[Dividing_Property_%26_Debt_in_Family_Law_Matters|Dividing Property & Debt]] section of the chapter on [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]], under the heading "[[Dividing_Property_%26_Debt_in_Family_Law_Matters#Determining_jurisdiction|Determining jurisdiction]]".

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/8mhj Wills Estates and Succession Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''

{{REVIEWED | reviewer = [[Gayle Raphanel]], July 8, 2014}}

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[[Category:JP Boyd on Family Law]]

The Law for Family Matters

2014-09-23T17:21:23Z

Mark Norton: /* Links */

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://familylaw.lss.bc.ca/resources/fact_sheets/choosing_court.php choosing Provincial or Supreme Court]
}}When lawyers speak about the law, they are really talking about two different things. The first kind of law is the laws made by the provincial and federal governments, called legislation. The other kind of law is the common law, which is the rules and principles developed by the courts as they decide case after case.

This section provides an overview of legislated laws, the common law, and the common law system of justice. It also talks about how to decide whether to begin a court proceeding under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]''.

==Introduction==

Under the [http://laws-lois.justice.gc.ca/eng/Const/index.html ''Constitution of Canada''], the federal and the provincial governments both have the power to make laws. Each level of government has its own particular area of jurisdiction, meaning that a subject that the federal government can pass laws on, the provincial governments generally can't, and vice versa. For example, the provinces have jurisdiction over property rights, so they can pass laws governing real estate, the sale of cars, the division of family property, and so forth. The federal government doesn't have the ability to make laws about property rights, except in certain special circumstances. On the other hand, the federal government can pass laws dealing with the military, navigation and shipping, and divorce, things that are outside the jurisdiction of the provincial governments. This distinction is important in family law because the laws of both the federal and provincial governments can relate to a problem, and you need to know which law governs what issue.

Legislated laws are only one source of law. Our constitution is another source of law, and another is the common law, also known as judge-made law. The fundamental principle of the common law is the idea that when a court has made a decision on a particular issue, another court facing a similar issue — with similar parties in similar circumstances — ought to make a similar decision. Courts are said to be "bound" by the decisions of earlier courts in previous cases. As no two cases are entirely alike, each court's decision is said to stand for a principle, a statement of what the law should be in the particular circumstances of that case. Sometimes this principle is an elaboration or a clarification of the general rule on a particular subject; sometimes it is a statement about what the law ought to be.

Our constitution requires that the courts be independent from the government. Despite this separation, the courts have a certain kind of authority over the government and the government has a certain kind of authority over the courts. For example, if the government passes a law that the court concludes is contrary to the constitution, the court can strike the legislation or make the government change it. On the other hand, the government has the authority to pass laws that change the common law rules made by the courts, although it can't change the court's decision in a particular case.

==The common law==

The common law of Canada is hundreds of years old and has its roots in England, in the ''curia regis'' established by King Henry II in 1178 and in the court of common pleas established by the Magna Carta in 1215, although really the oldest cases we are likely to refer to are from the 1800s. The common law is developed by the courts as they deal with each case, following a legal principle known by its Latin name, ''stare decisis''. Under this principle, a court dealing with a particular kind of problem is required, usually, to follow the decisions of previous courts that dealt with the same sort of problem in the same sort of circumstances. Court decisions are sometimes called "precedents" or "precedent decisions" because of the ''stare decisis'' principle.

Think of it like this. A long time ago, someone sued someone else for riding a horse onto his potato field without being invited. The court decided that you shouldn't be free to enter onto the property of another unless you were invited to do so, and found that the rider had ''trespassed''. Someone else riding a different horse onto a different field would be found liable for trespass based on the principle established by the first court. The first case was a precedent for the court's decision in the second case.

===The common law and government===

While the court is more or less free to develop the common law as it sees fit, the principles of the common law can be overridden by legislation made by the government. For example, the laws that deal with the interpretation and enforcement of contracts were at one point entirely governed by the common law. The government, as it decided it needed to regulate different aspects of the law of contracts, has made legislation covering lots of different areas of contract law, including such laws as the provincial ''Sale of Goods Act'' or the federal ''Advance Payments for Crops Act''. The new legislation overruled the old common law principles.

From a family law perspective, it used to be the case that a husband could sue someone else for "enticing" his wife to commit adultery or to leave him. Suing someone for enticement was a claim created by the courts. The ''[[Family Law Act]]'' now expressly forbids a spouse from bringing a court proceeding for enticement, thus overriding the common law rule. Other old common law claims abolished the ''Family Law Act'' include claims for breach of promise of marriage and loss of the benefits of marriage.

===The common law and legislation===

This leads to another important aspect of our legal system and the common law. The courts and the common law also play a role in interpreting laws made by the governments. Much of the case law in family law matters doesn't deal with ancient common law principles; it deals with how the courts have interpreted the legislation bearing on family law in the past. For example, [http://canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html#sec15.2subsec4 s. 15.2(4)] of the ''[[Divorce Act]]'' says that in considering a claim for spousal support, the court must:

<blockquote><tt>
... take into consideration the condition, means, needs and other circumstances of each spouse, including 
(a) the length of time the spouses cohabited; 
(b) the functions performed by each spouse during cohabitation; and 
(c) any order, agreement or arrangement relating to support of either spouse. 
</tt></blockquote>

A lot of the case law that deals with spousal support is about how this particular section of the ''Divorce Act'' has been interpreted in past cases. A lawyer making an argument about why spousal support should be awarded to her client now might make an argument to the judge supported by case law showing how this section has been interpreted to award spousal support in the past to spouses in circumstances similar to those of her client.

===Finding case law===

Because the common law consists of the decisions of judges made over the past several hundred years, the common law is researched by looking at these decisions. These decisions are written down and printed in books. These books, depending on the publisher, are issued on a monthly, quarterly or annual basis. (When you see a promotional photograph of a lawyer standing in front of a giant rack of musty, leather-bound books, the lawyer is standing in front of these collections of the case law.) These books, called ''reporters'', are where the past decisions of the courts are available if you need to make an argument about how the law applies to your particular situation. The most important reporter for family law is called the ''Reports on Family Law'', or the RFL for short, published by Carswell. You can find collections of case law reporters in the library of your local courthouse or at a law school in your neighbourhood. These libraries are open to the public, although they may have restricted business hours.

Thankfully, these days almost every important decision is published online as well. This makes research a lot easier and saves a lot of time travelling to and from libraries. [http://canlii.org CanLII], the Canadian Legal Information Institute, has a collection of most cases published since 1990 and a growing number of older cases from all parts of Canada. There are video tutorials on using CanLII effectively, courtesy of [http://www.canlii.org/en/blog/index.php?/archives/70-One-minute-legal-research-A-student-made-video-series.html CanLII's blog] and [http://www.courthouselibrary.ca/training/videos/FindingCasesOnPoint.aspx Courthouse Libraries BC's website].

The courts also post case law on their respective websites. Search the judgments of:

*the [http://www.provincialcourt.bc.ca/judgments-decisions Provincial Court of British Columbia],
*the [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Supreme Court of British Columbia],
*the [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Court of Appeal for British Columbia], and
*the [http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Supreme Court of Canada].

These websites also keep lists of recently released decisions that may be published there before making it to CanLII.

Another way to look up case law is to read digests of the law on particular subjects. The best materials on family law are two books published by the Continuing Legal Education Society of British Columbia:the ''Family Law Sourcebook for British Columbia'', and the ''British Columbia Family Practice Manual''. These books are available in some public libraries (the [http://www.worldcat.org WorldCat] website will tell you if a library near you has copies) or at a branch of [http://www.courthouselibrary.ca Courthouse Libraries BC].

Legal research can be terribly complex, partly because there are so many different reporters and partly because there are so many cases. In fact, legal research is the subject of a whole course at law school. You can get some help from the librarians at your local courthouse law library or university law library, all of whom are really quite helpful. In fact, the law library at UBC has a research desk that can help with certain limited matters. You might also consider hiring a law student to plough through the law for you, and the law schools at UBC, the University of Victoria and Thompson Rivers University will have job posting boards where you can put up a note about your needs and contact information.

If all else fails, or your issue is really complex, try hiring a professional legal researcher. The Legal Research section of the Canadian Bar Association BC maintains a list of freelance research lawyers, available on the [http://www.courthouselibrary.ca/clientservices/researchers.aspx Courthouse Libraries BC] website.

==Legislation==

Both the Parliament of Canada and the Legislative Assembly of British Columbia have the power to make laws in their different areas of authority. This kind of law is called legislation, and each piece of legislation, called a statute, is intended to address a specific subject, like how we drive a car or how houses are built, where and when we can fish or hunt, what companies can do, and how schools, hospitals and the post office work. Legislation governs how we interact with each other and implements government policy.

Government can also make regulations for a particular piece of statute that might contain important additional rules or say how the legislation is to be interpreted. The big difference between legislation and regulations is that legislation is publicly debated and voted on by the members of Parliament or the Legislative Assembly. Regulations are made by government without the necessity of a parliamentary vote, and often don't get much publicity as a result.

Because statutes and regulations have such a big impact on how we live our lives, they are relatively easy to find and relatively easy to understand. Unlike the common law, legislation is written down and organized. All of the current federal statutes can be found on the website of the [http://laws-lois.justice.gc.ca/eng/ Department of Justice]. All of the current provincial statutes can be found on the [http://www.bclaws.ca/EPLibraries/bclaws_new/content?xsl=/templates/toc.xsl/group=A/lastsearch=/ BC Laws] website run by the Queen's Printer.

[http://www.canlii.org CanLII] also posts all current federal and provincial laws. It has the advantage of letting you see older versions of some laws, and you can search for cases that refer to specific statutes or regulations. You can also find the old ''Family Relations Act'' on CanLII, which you won't be able to find on the BC Laws website.

===The division of powers===

The governments' different areas of legislative authority are set out in [http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-18 ss. 91] and [http://laws-lois.justice.gc.ca/eng/Const/page-4.html#h-19 92] of the ''[http://laws-lois.justice.gc.ca/eng/Const/page-1.html Constitution Act, 1867]''. The federal government can only make laws about the subjects set out in s. 91 and the provincial governments can only make laws about the subjects set out in s. 92.

From a family law perspective, this means that only the federal government has the authority to make laws about marriage and divorce, while the provincial governments have the exclusive authority to make laws about marriage ceremonies, the division of property, and civil rights. As a result, the federal ''[[Divorce Act]]'' talks about divorce and issues that are related to divorce, like the care of children, child support and spousal support. The provincial ''[[Family Law Act]]'' talks about the care of children, child support and spousal support as well, but also talks about the division of family property and family debt, the management of children's property, and determining the parentage of children.

===The doctrine of paramountcy===

Sometimes the subjects over which each level of government has authority overlap and, according to a legal principle called the ''doctrine of paramountcy'', all laws are not created equal. Under this doctrine, federal legislation on a subject trumps any provincial legislation on the same subject. This is important because in family law both the ''Divorce Act'' and the ''Family Law Act'' deal with child support and spousal support. As a result, orders under ''Divorce Act'' will always be paramount to orders under the ''Family Law Act'' on the same subject.

===Family law legislation===

The two most important pieces of legislation relating to family matters are, as you will have gathered, the federal ''Divorce Act'' and the provincial ''Family Law Act''. The most important regulation is the [[Child Support Guidelines]], a regulation to the ''Divorce Act'' that has also been adopted for the ''Family Law Act''.

The ''Divorce Act'' talks about:

#divorce,
#custody of and access to children,
#child support, and
#spousal support.

The ''Family Law Act'' talks about:

#determining the parentage of children,
#guardianship, parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#family property, family debt and excluded property,
#children's property,
#protection orders, and
#financial restraining orders.

The Child Support Guidelines talks about:

#calculating child support and determining children's special expenses,
#determining income, and
#disclosure of financial information.

Because family law issues can be very broad and touch on other areas of law, such as contract law or company law, other pieces of legislation may also apply to a problem. For example, the ''[http://canlii.ca/t/8481 Name Act]'' allows a spouse to change her name following a divorce, the ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with adoption, the ''[http://canlii.ca/t/8456 Land Title Act]'' deals with real property, the ''[http://canlii.ca/t/848q Partition of Property Act]'' allows a co-owner of real property to force the sale of the property, and the ''[http://canlii.ca/t/84ld Business Corporations Act]'' deals with the incorporation of companies, shareholders' loans, and other things that may be important if a spouse owns or controls a company.

==Choosing the law and the court==

Both the federal ''Divorce Act'' and the provincial ''Family Law Act'' deal with family law issues. As well, both the Provincial Court and the Supreme Court have the authority to hear proceedings dealing with family law issues. Deciding which legislation you are going to make your claim under is called making the ''choice of law''. Deciding in which court you are going to bring your claim is called making the ''choice of forum''.

===Jurisdictional issues===

Because of the rules set out in the ''Constitution Act, 1867'', the federal government has the sole authority to make laws on the following subjects:

#marriage,
#divorce,
#spousal support and child support, and
#custody of and access to children.

Because of the same statute, provincial governments have exclusive authority to make laws dealing with these subjects:

#the formalities of the marriage ceremony,
#spousal support and child support,
#guardianship, parental responsibilities and parenting time,
#contact with children,
#the division of family property and family debt,
#adoption,
#child welfare, and
#changes of name.

To further complicate things, the Provincial Court and the Supreme Court can make orders about some of the same subjects, but not all, under some of the same legislation, but not all. The Provincial Court can only deal with applications involving laws made by the provincial government and, even then, it cannot deal with applications involving the division of a property or debt, or adoption. In family law proceedings, the Provincial Court can only deal with applications involving the following subjects:

#guardianship, parental responsibilities, parenting time and contact under the ''Family Law Act'',
#spousal support and child support under the ''Family Law Act'',
#the enforcement of such orders made under the ''Family Law Act'', and
#protection orders under the ''Family Law Act''.

The Supreme Court, on the other hand, can deal with all of these subjects and everything else, like divorce and other claims under the ''Divorce Act''.

If you wish to make a claim for an order for divorce, adoption, determining the parentage of a child, management of children's property, the division of family property and family debt, or the protection of family property, you must make your application to the Supreme Court. Otherwise, you can make your claim in either court.

Making matters worse, there can be simultaneous court proceedings involving the same people, and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, an action for a couple's divorce can be before the Supreme Court at the same time as an application about parental responsibilities and spousal support is being heard by the Provincial Court. In such a circumstance, either party can make an application that the proceedings in the Provincial Court be joined with those in the Supreme Court so that both court proceedings are heard at the same time before the same court.

===The choice of law===

If you wish to obtain a divorce, you must make your claim under the ''Divorce Act''. If you wish to obtain an order dealing with property or debt, you must make your claim under the ''Family Law Act''. However, if you wish to apply for an order for almost anything else and you are married, you may make your claim under either piece of legislation.

There are one or two points you may wish to consider, however. Only married spouses make applications under the ''Divorce Act''. Unmarried spouses and other unmarried people may make applications for relief under the ''Family Law Act'' alone. Also, if your proceeding is before the Provincial Court, you must make your claim under the ''Family Law Act''. If your case is before the Supreme Court, you may claim under either the ''Divorce Act'' or the ''Family Law Act'', or under both.

The following chart shows which law deals with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|''Family Law Act''
!style="width: 20%" align="center"|''Divorce Act''
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Guardianship and parental responsibiities||align="center"|Custody
|-
|align="center"|'''Time with children'''||align="center"|Parenting time or contact||align="center"|Access
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''||align="center"|Yes||
|-
|align="center"|'''Protection orders'''||align="center"|Yes||
|-
|align="center"|'''Financial restraining orders'''||align="center"|Yes||
|}

===The choice of forum===

In family law matters, choosing the ''forum'' of a court proceeding means making the choice to proceed in either the Provincial Court or the Supreme Court. The Provincial Court has certain limits to its authority and, as a result has limits on the kinds of claims it can hear. The Supreme Court has the authority to deal with every almost legal issue within British Columbia. It also has something called "inherent jurisdiction," meaning that the Supreme Court, unlike the Provincial Court, is not limited to the authority it is given by legislation. It is safe to say that, as far as family matters are concerned, the Supreme Court can deal with everything the Provincial Court can as well as everything it can't.

The process of each court is guided by each court's set of rules. The [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] offer a much wider variety of tools and remedies than the [http://canlii.ca/t/85pb Provincial Court Family Rules], particularly in terms of the information and documents each side can make the other produce in the course of a proceeding. For example, the Supreme Court rules allow a party to make the other party submit to an examination for discovery, or make a company or third party produce records. These disclosure mechanisms are not available in the Provincial Court.

You may want to think about the relative complexity of the two courts' sets of rules, particularly if you plan to represent yourself and not hire a lawyer. The Provincial Court's rules are written in plain language and are fairly straightforward. The Supreme Court Family Rules are much more complicated and aren't written in the most easy to understand language.

Finally, you may also want to think about the cost of proceeding in each court. The Provincial Court charges no filing fees and has a relatively streamlined procedure. The Supreme Court charges filing fees, and the extra tools and remedies available under the Supreme Court Family Rules are helpful but will add to the cost of bringing a proceeding to trial.

This chart shows which level of court can deal with which issue:

::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Provincial Court
!style="width: 20%" align="center"|Supreme Court
|-
|align="center"|'''''Divorce Act'''''|| ||align="center"|Yes
|-
|align="center"|'''''Family Law Act'''''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Divorce'''|| ||align="center"|Yes
|-
|align="center"|'''Care of children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Time with children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''|| ||align="center"|Yes
|-
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and family debt'''|| ||align="center"|Yes
|-
|align="center"|'''Protection orders'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Financial restraining orders'''|| ||align="center"|Yes
|}

While it is possible to start an action in the Provincial Court to deal with one or two issues (like parental responsibilities or child support) and later start an action in the Supreme Court to deal with other issues (like dividing family property or divorce) it's usually best to confine yourself to a single court to avoid overlaps and keep things as simple as possible.


==Resources and links==

===Legislation===

* ''[[Divorce Act]]''
* ''[[Family Law Act]]''
* [[Child Support Guidelines]]
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html The Constitution of Canada]''

===Links===

* [http://www.canlii.org CanLII]
* [http://www.provincialcourt.bc.ca/judgments-decisions Decisions of the Provincial Court of British Columbia]
* [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Decisions of the Supreme Court of British Columbia]
* [http://courts.gov.bc.ca/search_judgments.aspx?court=0 Decisions of the Court of Appeal for British Columbia]
* [http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Decisions of the Supreme Court of Canada]
* [http://www.worldcat.org WorldCat]
* [http://www.courthouselibrary.ca/training/videos/FindingCasesOnPoint.aspx Courthouse Libraries BC] (finding case law video tutorial)
* [http://www.canlii.org/en/blog/index.php?/archives/70-One-minute-legal-research-A-student-made-video-series.html CanLII blog] (video tutorials on using CanLII)
* [http://www.courthouselibrary.ca/clientservices/researchers.aspx List of legal research lawyers]

{{REVIEWED | reviewer = [[Mark Norton and Don Kawano, QC]], September 23, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

You and Your Lawyer

2014-09-18T23:01:40Z

Mark Norton: /* Links */

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/expect_from_lawyer.php what to expect from a lawyer]
}}Lawyers are people with special legal training (and a law degree) who are licensed to practise law by their province's law society. The jobs of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia] are to regulate who can be a lawyer and to protect the public by setting and enforcing standards of professional conduct. Since many people involved in a family law dispute haven't had to deal with lawyers before, this section is about your relationship with your lawyer.

This section provides an overview of the lawyer-client relationship. It discusses how to find and hire a lawyer, how your lawyer bills for his or her services, what you can do if you're not happy with your lawyer, and how you or your lawyer can end the lawyer-client relationship.

==Introduction==

All lawyers in British Columbia are members of the [http://www.lawsociety.bc.ca/ Law Society of British Columbia]. Many are also members of the [http://www.cba.org/ Canadian Bar Association] and local bar associations like the [http://www.vancouverbar.ca/ Vancouver Bar Association], the [http://www.vicbar.com/ Victoria Bar Association] or the [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]. The Law Society's primary purpose is to govern and regulate lawyers to protect the public interest. As officers of the court and as members of the Law Society, lawyers are held to a high standard of conduct.

Your lawyer's primary job is to protect and advance your legal interests. At the same time, your lawyer must follow this high standard of conduct and act at all times in an ethical manner. Lawyers' duties to their clients, to each other and to the courts are governed by:

*the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'',
*the [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Rules] of the Law Society of British Columbia, and
*the Law Society's [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Code of Professional Conduct].

Boiling all this down a bit, your lawyer performs two key roles. First, your lawyer is like a plumber: if you tell your plumber to install your sink, he or she installs your sink. On the other hand, if you tell your plumber to hook the hot water pipe up to the ice-making machine intake, you'd expect your plumber to give you some common sense advice about why that might be a bad idea. Second, your lawyer is like a champion: your lawyer is your sword and shield, protecting you from some of the more unpleasant and adversarial aspects of litigation while boldly pursuing your claim.

Both of these analogies are totally cheesy but apt. You should expect your lawyer to take the heat for you and fearlessly advance your claim. While you should expect your lawyer to do just what you tell him or her to do, you should also expect your lawyer to give you good advice if your instructions are not in your best interests, and perhaps even refuse to accept your instructions. You should especially expect your lawyer to tell you if what you want to do will be harmful to your case.

Some lawyers are also mediators, arbitrators, and parenting coordinators. Lawyers who act in these roles are not serving as advocates in a traditional lawyer-client relationship; their jobs are much different.

Lawyers who are family law mediators have special, additional training in mediation. Family law mediators do not represent you or your spouse; they are providing mediation services to the both of you, rather than advocacy services for just one of you. Lawyers who act as mediators are neither party's advocate.

Lawyers who are family law arbitrators have special, additional training in arbitration and have to meet other requirements imposed by the Law Society and the [http://canlii.ca/t/8rdx Family Law Act Regulation]. Family law arbitrators are like private judges; their job is to hear the evidence and arguments necessary to decide a problem and then decide the problem by making a decision. Lawyers who act as arbitrators are neither party's advocate; they are neutral decision makers.

Lawyers who are parenting coordinators are trained as mediators and arbitrators, and have a great deal of training on top of that. The sort of services parenting coordinators provide are a blend of mediation and arbitration, with a bit of counselling thrown in. Parenting coordinators help parents deal with parenting disputes when they arise and, if an agreement cannot be reached through a process that's a lot like mediation, then the parenting coordinator will make a decision resolving the issue through a process that's a lot like arbitration. Lawyers who act as parenting coordinators are neither party's advocate. If they're anyone's advocate, they're the children's advocate.

The website of the [http://www.lawsociety.bc.ca Law Society of British Columbia] is an extremely helpful resource for people who have hired a lawyer or people who are thinking of retaining a lawyer. It provides a lot of information about the lawyer-client relationship and about lawyers' ethical duties to their clients.

==Finding and hiring a lawyer==

Sometimes the best way to find a lawyer is the same way you find a family doctor or a school for your children: by word of mouth. Ask your friends, family and co-workers if they've ever used a family law lawyer, and, if so, how they liked that person. Did the lawyer return telephone calls promptly? Did the lawyer keep them up to speed on the progress of their file? Was the lawyer's bill reasonable? Did they feel comfortable with their lawyer? You can also ask your doctor, your accountant or your dentist if they can refer you to someone. Some of the other things you might want to think about when hiring a lawyer are described in the section on [[Separating Emotionally]].

The Canadian Bar Association's [http://www.clicklaw.bc.ca/helpmap/service/1044 Lawyer Referral Service] is another way to find a lawyer. This service keeps a roster of subscribing lawyers in your area, a list of the areas of law they practise and a list of the languages they speak. Call 604-687-3221 in Vancouver and the Lower Mainland or, elsewhere in British Columbia, call 1-800-663-1919.

Yet another way to find a lawyer is by contacting the Legal Services Society (LSS) for [http://www.clicklaw.bc.ca/helpmap/service/1053 Legal Aid Intake Services]. LSS provides legal aid in British Columbia, and, if you meet their criteria, they will refer you to a lawyer and pay for the lawyer's services to boot. Be warned however, that since the provincial government's catastrophic reduction of funding to LSS in 2002, legal aid will generally only be available for people dealing with situations of family violence or where the abduction of children is a possibility. Go to LSS's website on [http://www.lss.bc.ca/legal_aid/howToApply.php how to apply for legal aid] for more information about their eligibility criteria.

If none of this works out, you can try finding a lawyer through the Yellow Pages or the internet, but only as a last resort. Typing "<tt>vancouver family lawyer</tt>" or "<tt>best divorce lawyer</tt>" into a search engine is a terrible way to find a lawyer; while you'll get a ton of results, you won't know anything about those lawyers except for the things they say about themselves on their websites. The same thing applies to picking a lawyer through a Yellow Pages ad.

Remember that not all lawyers practise family law, of course, and this is something you may want to take into consideration. Some lawyers focus exclusively on family law, so that family law is the whole of their practice; others practise family law along with other areas of the law. If a lawyer advertises in the Yellow Pages or online, the lawyer's ad or website will usually say exactly what area or areas of law he or she practises. You may wish to pay special attention to lawyers who tend to spend all or most of their time on family law matters.

===The first interview===

Once you've gathered the names of a few lawyers who sound promising, make an appointment to meet with each of them. A few lawyers will offer you some of their time for free or at a reduced rate for an initial interview. The lawyers you meet through the Lawyer Referral Service will charge a special reduced fee for a half-hour initial interview. Most lawyers however will bill for initial interviews at their usual hourly rate.

''Do not assume that the lawyer will not charge for his or her time unless the lawyer specifically advertises that he or she offers free initial consultations.'' Expect a bill for the lawyer's time!

Use this first meeting as an opportunity to assess how you feel about each lawyer and how you relate to them; you needn't hire the first lawyer you meet. You are entitled to shop around before you choose the lawyer who is right for you. You can also use your first interview with each lawyer to get that lawyer's take on your problem. Tell him or her about your problem concisely, and let the lawyer ask questions which pull out the details of your problem.

Don't be shy about asking lawyers about their hourly rates, how they will bill you, and what sort of disbursements (a lawyer's out-of-pocket expenses for things like photocopying and filing fees) the lawyer will expect that you pay for. Ask what sort of retainer they will require, what their interest rate is on overdue accounts, and whether they will be charging you any additional fees based on their success or the complexity of your problem. Ask whether anyone else in his or her firm will be working on your file, whether you will be billed for their work, and maybe ask to meet them too.

(If you're meeting with a lawyer who also works as a family law mediator or family law arbitrator, and you're thinking of hiring him or her to act in that capacity, you don't want to give the lawyer too many details about your situation. Family law mediators and family law arbitrators must be neutral and impartial. Too much information from just one of you may make the lawyer unable to help resolve your dispute.)

For a summary guide to your first interview with a lawyer, see [[How Do I Prepare for My First Meeting with a Lawyer?]] It's located in the ''How Do I?'' part of this resource in the ''Miscellaneous'' section.

===Hiring your lawyer===

Once you've picked a lawyer you like and have decided to hire him or her, your lawyer will require you to sign a retainer agreement and give him or her a deposit towards your first of couple of bills. Hiring a lawyer is called ''retaining'' a lawyer. A ''retainer agreement'' is a contract between your lawyer and yourself that you each must sign, and which sets out the legal and financial aspects of your relationship to each other. Read the agreement carefully! If there are any terms you don't understand, be sure to ask your lawyer, and, likewise, if you object to any of the terms of the agreement, express your objection and ask how your concern might be addressed. A ''retainer'' is a sum of money you will likely be asked to give as a deposit against your lawyer's future services and fees.

Never hesitate to tell your lawyer about any concerns you have about his or her bills or services.

(A family law mediator will ask you to sign an Agreement to Mediate rather than the usual retainer agreement. The Agreement to Mediate will set out the details of the mediator's rate and expectations about payment, and how each mediation session will be paid for. The same thing applies to family law arbitrators. Parenting coordinators will want you to sign a Parenting Coordination Agreement, and will usually ask for both a retainer and a fee deposit.)

==How your lawyer charges you==

You should discuss with your lawyer, at the very first meeting, exactly how the lawyer will bill you for his or her time and for the expenses the lawyer incurs in working on your file. Most lawyers will bring this up on their own, but if your lawyer happens to forget to talk about it, you should bring it up. Don't be shy. You will, at a minimum, want to know what the lawyer's hourly rate is and what the lawyer's expectations are regarding payment of each account.

===Your retainer===

In British Columbia, family law lawyers cannot work on a contingency basis — for a percentage of the client's award or settlement — which is how some other lawyers, like personal injury lawyers, often get paid. Family law lawyers bill for their services by the hour, although some may bill on fixed, flat-rate for smaller tasks where the scope of the lawyer's services is clearly limited.

Family law lawyers will usually expect to be paid some money up front, called a retainer. While some family law lawyers will agree to be paid from the proceeds of the sale of an asset following trial, most often they'll expect to be paid by an initial retainer followed by additional retainer payments or a monthly billing process.

The amount you pay as your retainer is held by your lawyer in trust. Your lawyer will withdraw money from the retainer each time he or she bills you. After a couple of bills or more have been paid from the retainer, the retainer may be exhausted. At that point your lawyer will usually ask you for another retainer, or your lawyer may simply bill you directly each month. On the other hand, if your problem is resolved more quickly than was expected or if you fire your lawyer, you will be entitled to a refund of however much of the retainer is left over.

The terms of how your lawyer will bill you will be set out in your retainer agreement. This is one of the reasons why it is essential that you read the agreement carefully before you sign it. Note that lawyers' fees are subject to PST and GST. Mediators' fees and parenting coordinators' fees are subject to just GST.

===Reviewing your lawyer's bill===

Both you and your lawyer have the right to have the lawyer's bills reviewed for fairness under the ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]'' to fix a final amount owing. The fee review is performed by a registrar or master of the Supreme Court at a formal hearing in court.

At this hearing, the registrar will be presented with the lawyer's bills to you, and any other supporting documents, such as a time diary, a statement of the lawyer's charges to your bill by the amount of time spent on each task on a day-by-day basis, and the documents and correspondence that were generated over the course of the lawyer's services to you. Your lawyer will attempt to satisfy the registrar that his or her fees were reasonable and that the amounts billed for disbursements were reasonable. The registrar will look at the bills and apply a number of considerations in arriving at his or her decision, including:

*the value and importance of the results obtained,
*the complexity or novelty of the issues,
*whether the time spent was reasonable, and
*whether your lawyer's hourly rate was reasonable.

You will, of course, have the opportunity to present your side of the case and dispute your lawyer's bill as you see fit.

After hearing all the evidence, the registrar will issue a ''Certificate of Fees'' which sets out the amount of fees and disbursements that the registrar has approved as reasonable. That becomes the amount you owe to your lawyer for his or her services, and, in some cases, the amount of the refund your lawyer owes you. Most importantly, the Certificate of Fees has the same standing as a court judgment and can be used as such to enforce the amount owing to the lawyer or the amount owed by the lawyer to you.

As an alternative to a review under the ''Legal Profession Act'', the Law Society operates a [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Fee Mediation Program]. This is an informal process for dealing with fee disputes without having to go to court.

===Tax deductions for legal fees===

The portion of a lawyer's bill attributable to obtaining or enforcing an order for child support or spousal support is tax deductible. The cost of defending a claim for spousal support or child support is not deductible.

To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of his or her fees were attributable to advancing a spousal or child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case. Lawyers do not keep track of things like this automatically, mostly because it involves extra work and cost to the client that may outweigh the tax benefit.

If you don't ask your lawyer about this at the beginning of his or her retainer, it may be impossible to winnow out the parts of the lawyer's bills that were dedicated to support issues, and the cost of the time your lawyer spent reviewing your file. His or her bills to figure this out may cost more than the deduction you will get.

==If you are dissatisfied==

If you are concerned about how your file is being handled or have a complaint about your lawyer, you should first of all discuss the matter with your lawyer. This may not always be appropriate. You may wish to contact the Law Society before you speak with your lawyer. Most lawyers, however, are deeply concerned about the satisfaction of their clients, and will go out of their way to fix, or at least explain, any problem you might be experiencing.

The Law Society exists to govern the legal profession for the benefit of the public. It is not the lawyer's friend or ally. You have the right to bring a complaint to the Law Society about a lawyer's actions or lack of action. You can contact the Law Society at:

<blockquote>The Law Society of British Columbia 
845 Cambie Street 
Vancouver, British Columbia 
V6B 4Z9 
  
Telephone 604-669-2533 or 1-800-903-5300 
Facsimile 604-669-5232</blockquote>

There is no charge to speak to one of the Law Society's complaints officers and you do not need to hire a lawyer to make a complaint or begin the complaints process.

==Ending the lawyer-client relationship==

You or your lawyer can end your working relationship; you can fire your lawyer and your lawyer can fire you. From a lawyer's point of view, neither event occurs particularly often, but it does happen.

===Firing your lawyer===

Clients usually want to fire their lawyers when they're unhappy with the service they're receiving. You can fire your lawyer simply by sending him or her a letter to that effect or giving your lawyer a call, though you will no doubt want to phrase a bit more nicely than "I'm firing you." The lawyer-client relationship is a business relationship, and you can terminate this relationship any time you wish.

Of course, there will be some things left to deal with after you've given your lawyer the news.

First, you'll have to pay your outstanding account, if there is one. If you disagree with the amount charged, you can apply to the court to have your lawyer's bill reviewed, which is described in more detail above. On the other hand, if there's still money in your retainer, that's your money and you can ask to have it sent back to you.

Then there's the matter of your file. If your case is still on-going, you'll need to get your file. If you've hired another lawyer, your lawyer will normally just send it to your new counsel; if you haven't, you're entitled to ask that your lawyer send it straight to you. Of course, there may be a slight problem if you still owe money to your lawyer. If you still owe money, your lawyer is entitled to keep your file until his or her account is paid in full. In the right circumstances, your lawyer may agree to transfer your file to your new lawyer on the new lawyer's promise to make sure that the bill gets paid when the file concludes.

===When your lawyer fires you===

This really doesn't happen all that frequently. Most often, a lawyer will fire his or her client for one of the following reasons:

*an account is unpaid and there is a low likelihood that the account will get paid,
*the client refuses to give reasonable instructions or follow the lawyer's advice, or
*the trust aspect of the lawyer-client relationship has broken down.

If your lawyer fires you, he or she will normally do so in a letter detailing the reason why he or she can no longer act for you and highlighting any important dates that are upcoming in your case. Most lawyers will also recommend other lawyers you may wish to consider retaining in his or her place.

After you've been fired, the same concerns arise as if you'd fired your lawyer. The lawyer will be concerned about an outstanding account and you will want your file back, or at least transferred to a new lawyer. As far as your outstanding account is concerned, it's important to know that your lawyer can have his or her own bill reviewed under the ''Legal Profession Act'' to get a judgment about the amount owing; that's something both of you can do.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* [http://canlii.ca/t/8rdx Family Law Act Regulation]
* ''[http://www.lawsociety.bc.ca/page.cfm?cid=694&t=Legal-Profession-Act-Contents Legal Profession Act]''

===Links===

* [http://www.lawsociety.bc.ca/ Law Society of British Columbia]
* [http://www.cba.org/ Canadian Bar Association]
* [http://www.vancouverbar.ca/ Vancouver Bar Association]
* [http://www.vicbar.com/ Victoria Bar Association]
* [http://www.tlabc.org/ Trial Lawyers Association of British Columbia]
* [http://www.lawsociety.bc.ca/page.cfm?cid=334&t=Law-Society-Rules Law Society of BC Rules]
* [http://www.lawsociety.bc.ca/page.cfm?cid=2578&t=BC-Code-Table-of-Contents Law Society's Code of Professional Conduct]
* [http://www.ag.gov.bc.ca/legislation/family-law/regs-explained.htm Family Law Act Regulations Explained – Ministry of Justice website]
* [http://www.clicklaw.bc.ca/helpmap/service/1044 CBABC Lawyer Referral Service]
* [http://www.clicklaw.bc.ca/helpmap/service/1053 LSS Legal Aid Intake Services]
* [http://www.lss.bc.ca/legal_aid/howToApply.php LSS's website on how to apply for legal aid]
* [http://www.bcparentingcoordinators.com/ BC Parenting Coordinators Roster Society]
* [http://mediatebc.com/Mediation-Services/Family-Mediation-Services.aspx Mediate BC Website for Family Mediation Services]
* [http://www.lawsociety.bc.ca/page.cfm?cid=144&t=Law-Society-Fee-Mediation-Program Law Society Fee Mediation Program]

{{REVIEWED | reviewer = [[Mark Norton and Don Kawano, QC]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

The Court System for Family Matters

2014-09-18T22:56:48Z

Mark Norton: /* Links */

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge was wrong and sometimes cancels the trial decision.

The Provincial Court can only deal with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

==Introduction==

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king on special days set aside for the hearing of "petitions," complaints made by someone (the ''petitioner'') against someone else (the ''respondent''). If the petition got heard, and not all did, the king would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them, called judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial and unbiased manner, free from any interference by the government.

===The courts of British Columbia===

Today we have three levels of court in British Columbia:

#the Provincial Court of British Columbia,
#the Supreme Court of British Columbia, and
#the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the lowest level of court and the Court of Appeal being the highest. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

===Making the choice of forum===

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the ''choice of forum''.

The Provincial Court can only deal with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the ''Divorce Act'', or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for common activities, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. However it can be confusing to manage two court proceedings, and you have to be careful not to bring up issues in one court that are being dealt with by the other court.

==The Provincial Court==

The Provincial Court is usually the most accessible court for people who aren't represented by a lawyer. The [http://canlii.ca/t/85pb Provincial Court Family Rules] which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also a lot more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

===Jurisdiction===

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the ''Divorce Act''.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

#guardianship,
#parental responsibilities and parenting time,
#contact with a child,
#child support,
#spousal support,
#changing and cancelling Provincial Court orders,
#enforcing Provincial Court orders,
#enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
#relocation.

===Court proceedings===

The Provincial Court has special rules just for family law proceedings, the [http://canlii.ca/t/85pb Provincial Court Family Rules]. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

The person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.

The applicant starts a proceeding by filing in court an Application to Obtain an Order in Form 1 and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply in Form 3; the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers and a judge to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 16. It is always best to file an Affidavit in Form 17 with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing an Application to Change or Cancel an Order in Form 2 and serving on the other parties. The other parties have 30 days to reply by filing a Reply in Form 3.

====Addressing the court====

Judges of the Provincial Court are addressed as "Your Honour."

====Appeals====

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made.

According to [http://canlii.ca/en/bc/laws/stat/sbc-2011-c-25/latest/part-11/sbc-2011-c-25-part-11.html#section233 s. 233(1)] of the ''Family Law Act'', only final orders may be appealed. In a case called [http://canlii.ca/t/fkmwm ''Dima v. Dima''], 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Supreme Court==

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

===Court jurisdiction===

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.

===Court proceedings===

The Supreme Court has special rules just for family law proceedings, the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notices] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

====Procedure====

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim in Form F3. The person who starts a proceeding by a Notice of Family Claim is the ''claimant'', and the person against whom the claim is brought is the ''respondent''. In certain unusual cases, a proceeding can also be started by filing in court a Petition in Form F73. Someone starting a proceeding with a Petition is the ''petitioner'', and the other party is the ''petition respondent''.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim in Form F4. A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim in Form F5. A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].

Interim applications, applications for temporary orders, can be made by filing a Notice of Application in Form F31 and an Affidavit in Form F30. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response in Form F32 and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].

Applications to change final orders are made by filing a Notice of Application in Form F31 and an Affidavit in Form F30 and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

====Addressing the court====

There are two kinds of judicial official at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications, trials and applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

==The Court of Appeal==

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

===Court proceedings===

If you are involved in a proceeding before the Court of Appeal, you must read the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the Court of Appeal's [http://canlii.ca/t/85bg Rules of Court]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

====Procedure====

Appeals are started by filing in court a Notice of Appeal in Form 7 or, depending on the circumstances, a Notice of Application for Leave to Appeal in Form 1, and must be started within 30 days of the order appealed from. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal in Form 8; this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 6 and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law he or she will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to ''dissent''.

====Addressing the court====

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

====Appeals====

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure Act]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://canlii.org CanLII]
* [http://familylaw.lss.bc.ca/legal_issues/legalSystem.php Legal Services Society's page on the Legal System]

{{REVIEWED | reviewer = [[Mark Norton and Don Kawano, QC]], September 18, 2014}}

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Understanding the Legal System for Family Law Matters

2014-09-18T22:52:26Z

Mark Norton: /* Appeal basics */

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction 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 property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

The decision of the judge at the trial can be challenged to a designated court of review. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

An appeal court very rarely hears new evidence or makes 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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Mark Norton and Don Kawano, QC]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2014-09-18T22:49:33Z

Mark Norton: /* Links */

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction 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 property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[Mark Norton and Don Kawano, QC]], September 18, 2014}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2014-09-18T22:39:40Z

Mark Norton: /* Deciding not to litigate */

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 often 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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction 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 property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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Understanding the Legal System for Family Law Matters

2014-09-18T22:38:03Z

Mark Norton: /* Choosing the right process */

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction 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 property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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[[Category:JP Boyd on Family Law]]

Understanding the Legal System for Family Law Matters

2014-09-18T22:34:30Z

Mark Norton: /* Introduction */

{{JPBOFL Start Chapter
| Related = [[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer|You & Your Lawyer]]
}}

{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
|ChapterEditors = [[Don Kawano]] and [[Mark Norton]]
}}
{{LSSbadge
|resourcetype = more information on
|link = [http://www.familylaw.lss.bc.ca/legal_issues/legalSystem.php the legal system]
}}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 judge who hears the case applies the law to the facts and makes a decision 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|the lawyer-client relationship]].

==Introduction==

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 parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has 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 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 settlement 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 resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. 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 mediator to mediate your problems and come up with a solution that you're both as happy with as possible. You could hire a lawyer 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 divorce 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 arbitrator 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 proceeding 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 separation; 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 order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court 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 debt,
*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.

==The law==

When lawyers talk about ''the law'' they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. 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 regulations 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 Guidelines, 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===

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 ''[http://laws.justice.gc.ca/eng/Const/Const_index.html 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 access:

<blockquote><tt>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 contact with each spouse as is consistent with the best interests of the child.</tt></blockquote>

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 case. These ideas are not organized in a code or regulation. They are found in case 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 evidence 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 courts==

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 claim 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 party the chance to tell their story and give a complete answer. 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 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 Court, 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 jurisdiction 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 property or 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 constitution. 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules], which apply just to family law disputes, and the [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/168_2009_00 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 appeal 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.
{| style="width: 30%;
| [[File:CourtChart.GIF|center|The court system in British Columbia]]
|}

==Court processes==

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 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, 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:
*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 discovery, if you're in the Supreme Court, and
*make or reply to one or more interim applications.

An ''interim application'' is an application to the court before trial for a temporary order, called an interim order. 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 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 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===

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 witness can also be given by an affidavit.

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 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 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."

===Appeal basics===

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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231:

<blockquote>"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 law, 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 material to the outcome."</blockquote>

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?]]

==Representing yourself==

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 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 disclosure and 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 for Family Matters|the court system]], [[The Law for Family Matters|the law]], and [[You & Your Lawyer|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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 action 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''.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
*''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''

===Resources===

*[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]] (PDF)

===Links===

*[http://courts.gov.bc.ca Courts of British Columbia website]
*[http://www.scc-csc.gc.ca/home-accueil/index-eng.asp Supreme Court of Canada website]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | the law, courts and legal system]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at Infinity Law in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

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<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Mark Norton''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the chapter on [[Introduction to the Legal System for Family Matters | the law, courts and legal system]]. He is a 2005 graduate of Dalhousie Law School, and practised law in New Brunswick before relocating to BC where he was called to the Bar in 2007. Mark practises family law at Infinity Law in Victoria.

He is a past member of the executive of the Canadian Bar Association BC Branch's Civil Litigation Section for Victoria. He is also a member of the Association of Family Conciliation Courts (AFCC) which is an interdisciplinary and international association of professionals dedicated to the resolution of family conflict.

| name = Mark Norton
| image = [[image:mnorton.png|150px|left|link=|Mark Norton]]
| organization = Infinity Law
| website =
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