The Law for Family Matters
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 consists of 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 in Canada. It also talks about how to decide whether to begin a family law court proceeding under the Divorce Act or the Family Law Act.
Under the 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 the law in Canada. 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 are independent from 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, sort of like the "checks and balances" you hear American political commentators talking about when they're upset about something the president's done. For example, if the government passes a law that the court concludes is contrary to the constitution, the court can strike the legislation, reduce the breadth of its application, or make the government change it. On the other hand, the government has the authority to pass laws that change the common law principles developed by the courts or make laws that override the constitution, 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 12th Century, when Henry II decided to start farming out the job of hearing complaints about people's disputes to judges. The judges would roam the countryside, which is where the term circuit court originates, deciding these problems on behalf of the king. Acting on behalf of the same employer, the judges needed to make sure that their decisions were similar. The "king" couldn't decide that breaking into someone's house was a civil offence on one day and that it wasn't on another. As a result, each judge felt themselves to be bound by the decisions of their fellow judges, and that is the meaning of "the common law." It's the law that is common to the whole of the country.
(This, incidentally, was a huge improvement over what was happening in Europe at the same time, where the administration of a uniform legal code had collapsed with the rule of the Roman Empire. "The law" became something that changed from village to village according to local custom, rather than having some laws that could be predicted wherever you travelled. In fact, the original job of the jury was to decide what the local law was, not to decide the facts of a case!)
The idea that a judge is bound by the decision of a previous judge is 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. One decision stands as precedent for the next.
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 by 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. Most 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, section 15.2(4) of the Divorce Act says that in considering a claim for spousal support, the court must:
... 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.
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 good example of which is the 1999 Supreme Court of Canada decision in Bracklow v Bracklow. The court said, at paragraph 36 of its decision:
"Against the background of these objectives [in section 15.2(6)] the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the 'condition, means, needs and other circumstances of each spouse'. This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, 'in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse ... the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party': Ross v Ross. There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown."
A lawyer making an argument about why spousal support should be awarded to their client now might make an argument to the judge supported by case law, perhaps including the decision in Bracklow, showing how this section has been interpreted to award spousal support in the past to spouses in circumstances similar to those of their 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 through these decisions. These decisions used to be only available in books. Those books, depending on the publisher, were 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, were where the past decisions of the courts could be found if you needed to make an argument about how the law applied to your particular situation. You can still find collections of 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 the library. 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. CanLII is, without a doubt, the best place to find case law.
The courts also post case law on their respective websites. You can search the judgments of:
- the Provincial Court of British Columbia,
- the Supreme Court of British Columbia,
- the Court of Appeal for British Columbia, and
- the 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 WorldCat website will tell you if a library near you has copies — or at a branch of Courthouse Libraries BC.
Legal research can be terribly complex, partly because there are so many different places to look and partly because there are so many different cases. In fact, legal research is the subject of a whole course at law school. You might want to take a look at The Canadian Legal Research and Writing Guide, a free and comprehensive step-by-step guide on how to perform legal research in Canada based on the work of a well-respected legal research expert, Catherine Best. You can also get some help from the librarians at your local courthouse law library or university law library. 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. 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, you could try hiring a professional legal researcher.
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, statutes, or acts, all of which mean the same thing. Each piece of legislation is written 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 helps implement government policy.
Government can also make regulations for a particular piece of legislation that might contain important additional rules or say how the statute 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.
The two main statutes governing family law in British Columbia are the federal Divorce Act and the provincial Family Law Act. The Child Support Guidelines is a regulation to the Divorce Act that has been adopted by the Family Law Act. The Family Law Act has its own regulations, including the Division of Pensions Regulation and the Family Law Act Regulation.
Because statutes and regulations have such a big impact on how we live our lives, they are relatively easy to find and usually relatively easy to understand. (A big exception to this general rule is the federal Income Tax Act, which is a horror show I wouldn't wish on my worst enemy. Good luck understanding that when you have to file your taxes!) Unlike the common law, legislation is systematically organized, and when a law is changed, the change is recorded and it all continues to be nicely and systematically organized.
All of the current federal statutes can be found on the website of the Department of Justice. All of the current provincial statutes can be found on the BC Laws website run by the Queen's Printer. 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 described in sections 91 and 92 of the Constitution Act, 1867. The federal government can only make laws about the subjects set out in section 91, and the provincial governments can only make laws about the subjects set out in section 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 parenting children, child support, and spousal support, and the federal Civil Marriage Act talks about marriage and issues related to marriage. The provincial Family Law Act talks about parenting 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, the guardianship of children, 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 parenting children, child support, and spousal support. As a result, orders under the Divorce Act will usually be paramount to orders under the Family Law Act on the same subject.
It isn't quite right to say that federal legislation "trumps" provincial legislation. It's a little more complex, and this is important because the Divorce Act and the Family Law Act cover so many of the same subjects. Really, what the legal test says is that in order for the federal legislation to win, there must be a "functional incompatibility" between the provincial legislation and the federal legislation, so that it is impossible to comply with both statutes and that complying with one statute would frustrate the purpose of the other statute. Here's what the Supreme Court of Canada said in a 2007 case called Canadian Western Bank v Alberta, at paragraphs 69 and 75:
"According to the doctrine of federal paramountcy, when the operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the provincial legislation is rendered inoperative to the extent of the incompatibility. The doctrine applies not only to cases in which the provincial legislature has legislated pursuant to its ancillary power to trench on an area of federal jurisdiction, but also to situations in which the provincial legislature acts within its primary powers, and Parliament pursuant to its ancillary powers.
...[t]he onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law."
That's a bit complicated, but what it all boils down to is what the Supreme Court of British Columbia said in a 2014 case called B.D.M. v A.E.M.: "the doctrine of paramountcy does not preclude consideration and application of the FLA in family law proceedings in which a divorce is granted."
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 by the Family Law Act.
The Divorce Act talks about:
- decision-making responsibility,
- parenting time and contact with children,
- moving away, with or without children,
- child support, and
- spousal support.
The Family Law Act talks about:
- determining the parentage of children,
- guardianship of children,
- parental responsibilities, parenting time, and contact with children,
- moving away, with or without children,
- child support,
- spousal support,
- family property, family debt, and excluded property,
- managing children's property,
- orders protecting people, and
- orders protecting property.
The Child Support Guidelines talks about:
- calculating the amount of child support and determining children's special expenses,
- determining the income of parents, 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 Name Act allows a spouse to change their name following a divorce, the Adoption Act deals with adoption, the Land Title Act deals with real property, the Partition of Property Act allows a co-owner of real property to force the sale of the property, and the 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.
Because of the rules set out in the Constitution Act, 1867, that we talked about earlier in this section, the federal government has the sole authority to make laws on the following subjects:
- parenting children, and
- spousal support and child support.
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 and parenting children,
- the division of property and debt,
- children's welfare, and
- naming and changing names.
To further complicate things, the Provincial Court and the Supreme Court can make orders about some of the same subjects, but not all, and under some of the same legislation, but not all. In family law proceedings, the Provincial Court can only deal with applications involving the following subjects:
- guardianship and parenting children under the Family Law Act,
- moving away, with or without children, under the Family Law Act,
- spousal support and child support under the Family Law Act, and
- orders for the protection of people under the Family Law Act.
The Supreme Court, on the other hand, can deal with all of these subjects and everything else, including divorce:
- divorce under the Divorce Act,
- determining the parentage of children under the Family Law Act,
- guardianship under the Family Law Act, and parenting children under both the Divorce Act and the Family Law Act,
- managing children's property under the Family Law Act,
- moving away, with or without children, under both the Divorce Act and the Family Law Act,
- spousal support and child support under both the Divorce Act and the Family Law Act,
- dividing property and debt under the Family Law Act,
- orders for the protection of people under the Family Law Act, and
- orders for the protection of property under the Family Law Act.
As you can see, if you wish to make claims about divorce, determining the parentage of a child, managing children's property, dividing property and debt, or protecting 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 court proceedings happening at the same time, involving the same people and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, a claim 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. That's not so bad, because each court is dealing with different legal issues. Where it gets hairy is when someone starts a claim in the Provincial Court — usually because that court doesn't charge filing fees and is a little bit easier to navigate — and the other side starts a claim in the Supreme Court on the same legal issues plus a few more that the Provincial Court can't deal with, like the division of property. In cases like that, either party can make an application that the proceedings in the Provincial Court be joined with those in the Supreme Court so that they are heard at the same time before the same court.
The choice of law
As we've just discussed, if you want to get 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 want to make a claim about parenting children, child support and spousal support, you can make your claim under either piece of legislation. But that's not all.
Only married spouses can make applications under the Divorce Act, while married spouses, unmarried spouses, parents and other unmarried people may all make applications for relief under the Family Law Act. Also, the Provincial Court can only deal with claims under some parts of the Family Law Act while the Supreme Court can hear claims under the Divorce Act and all of the Family Law Act. Here's a handy chart.
Family Law Act Divorce Act Divorce Yes Parenting children Guardianship and
Decision-making responsibility Parenting time and contact Yes Yes Child support Yes Yes Children's property Yes Spousal support Yes Yes Property and debt Yes Orders protecting people Yes Orders protecting property Yes
The choice of forum
Forum means place. In family law matters, the choice of forum is about choosing which of the two trial courts to make a claim in, the place of your trial. 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 almost every legal issue. 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.
Other things to think about when making the choice of forum are complexity and cost. The process of each court is guided by each court's set of rules. The Supreme Court Family Rules offer a much wider variety of tools than the Provincial Court Family Rules, but the rules of the Supreme Court are much, much more complicated than the rules of the Provincial Court. The Provincial Court charges no filing fees and has a relatively streamlined procedure. The Supreme Court charges filing fees, and the extra tools available under the Supreme Court Family Rules are helpful but add to the cost of bringing a proceeding to trial.
This chart shows which level of court can deal with which issue:
Provincial Court Supreme Court The Divorce Act Yes The Family Law Act Yes Yes Divorce Yes Parenting children Yes Yes Time with children Yes Yes Child support Yes Yes Children's property Yes Spousal support Yes Yes Property and debt Yes Orders protecting people Yes Yes Orders protecting property 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.
- Divorce Act
- Family Law Act
- Child Support Guidelines
- The Constitution of Canada
- Civil Marriage Act
- Provincial Court Family Rules
- Family Law Act Regulation BC Reg 347/2012
- Name Act
- Adoption Act
- Partition of Property Act
- "Canadian Legal Research and Writing Guide" from CanLII
- Decisions of the Provincial Court of British Columbia
- Decisions of the Supreme Court of British Columbia
- Decisions of the Court of Appeal for British Columbia
- Decisions of the Supreme Court of Canada
- CanLII blog (video tutorials on using CanLII)
- "Family Cases" from the Provincial Court of BC
- "Do you need to go to Provincial (Family) Court or Supreme Court?" from Legal Aid BC
- "Which court to go to?" from Legal Aid BC
- "Courts of BC" from Justice Education Society
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 19 February 2020.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|