The Court System for Family Matters

From Clicklaw Wikibooks

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 their 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:

  1. the Provincial Court of British Columbia,
  2. the Supreme Court of British Columbia, and
  3. 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 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 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:

  1. guardianship,
  2. parental responsibilities and parenting time,
  3. contact with a child,
  4. child support,
  5. spousal support,
  6. changing and cancelling Provincial Court orders,
  7. enforcing Provincial Court orders,
  8. enforcing Supreme Court about guardianship, parental responsibilities, parenting time and contact, and
  9. relocation.

Court proceedings

The Provincial Court has special rules just for family law proceedings, the 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 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 Problems in Court in the section on 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 Problems in Court in the section on 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 s. 233(1) of the Family Law Act, only final orders may be appealed. In a case called 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 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:

  1. the Supreme Court has inherent jurisdiction, which means it can deal with every kind of legal issue,
  2. the Supreme Court can deal with claims under the Divorce Act, including making divorce orders, as well as claims under the Family Law Act,
  3. the Supreme Court can divide family property and family debt under the Family Law Act,
  4. 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 Land Title Act or the Partition of Property Act,
  5. the Supreme Court may issue restraining orders freezing financial assets, and
  6. 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 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 Practice Directions and 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 Problems in Court in the section on 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 Problems in Court in the section on 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 Court of Appeal Act and the Court of Appeal's 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 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 they will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the 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

Resources

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Bob Mostar and Mark Norton, June 8, 2017.



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