The Court System for Family Matters: Difference between revisions

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{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|CoAuthor = [[Elizabeth Cameron]] and [[Rosemary Gallo]]
|ChapterEditors = [[Bob Mostar]] and [[Mark Norton]]
|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 about the legal claims people bring before them. The Court of Appeal only hears appeals. It listens to arguments about why a trial judge may have made the wrong decision about a claim, and may confirm, change or cancel a trial judge's decision.


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 a limited variety of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and can deal with all issues and all claims; their jurisdiction is limited only by their rules and by the Constitution.
 
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.
This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.


<span style="color:#D2691E">'''Important changes'''</span> <br />
==Introduction==
Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.


==Introduction==
Our court system has its origins hundreds of years ago in England, when the Court of Common Pleas was established by Henry II in the late 12th Century. Before this, people would come to the king or queen on special days set aside for the hearing of "petitions," legal 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, whether they liked it or not, putting an end to the complaint.


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. This was the origin of the Court of Common Pleas, and it marked the start of the English common law as the specially-appointed people, ''judges'', were sent out to tour the country and resolve legal problems on behalf of the king or queen. Eventually, the monarchy got out of the business altogether and left the hearing of petitions entirely to the judges. The English court system became more complex as time went on, and different types of courts, like the Court of Equity, the Court of the Exchequer and the Court of Wards and Liveries, were eventually set up to deal with different kinds of problems.


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. The laws of England were adopted by British Columbia after the two colonies were joined by the proclamation of Governor Sir James Douglas on 19 November 1858, shown below. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.


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.
[[Image:1858_Proclamation_Gov_Douglas.png|frameless|center|400px|1858 Proclamation of Governor Sir James Douglas]]


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.
The fundamental purpose of the courts today is the same as it was then: to resolve people's legal disputes. We still use a lot of the same terms that were used hundreds of years ago &mdash; there's even a court form called a Petition &mdash; although we have merged the different types of courts into a single system with the authority to decide every sort of legal 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, and 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.
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 that they have been wrongfully dismissed, to a driver's complaint that someone else was responsible for an accident and should pay for the damage it caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in an impartial and unbiased manner, free from any interference by the government or influence by the parties.


===The courts of British Columbia===
===The courts of British Columbia===
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#the Court of Appeal for British Columbia.
#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.
Each successive level of court is "superior" to the other, with the Provincial Court being at the bottom of the pile and the Court of Appeal being at the top. 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 resolved; they are our ''trial courts''. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts; they are our ''appellate courts''.  


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.
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, called ''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 often discourages people from arguing about their legal disputes after they've gone through a trial.


===Making the choice of forum===
===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''.
There are important differences between the Provincial Court and the Supreme Court. Deciding in which trial 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 Provincial Court deals with issues relating to parenting children, child support, spousal support, companion animals, and orders protecting people under the provincial ''[[Family Law Act]]''. The Supreme Court has the authority to deal with all of those issues, but can also deal with issues about parentage, dividing property and debt, and orders protecting property under the provincial act. Only the Supreme Court has the authority to make orders under the federal ''[[Divorce Act]]'', including orders for divorce. There's a chart showing which court can deal with which issue in the [[Family Law in British Columbia#The courts of British Columbia | Family Law in British Columbia]] chapter of the Getting Started part of this resource.


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.
The rules of the Supreme Court can be very complicated and fees are charged for many steps in the court process, including filing the paperwork that starts a court proceeding, making an application, or going to trial. The rules of the Provincial Court are shorter and more straightforward, and the court doesn't charge any fees.


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.
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. It can be complicated to split your family law issues between two courts. A lot of people find it easier just to deal with everything in one court. Because of the limits of the authority of the Provincial Court, that court is usually the Supreme Court.


==The Provincial Court==
==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/b8rn 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.


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


===Jurisdiction===
===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 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 (with the exception of companion animals) or family debt, the management of children's property, or orders protecting property. It cannot make any orders under the ''[[Divorce Act]]''. The Provincial Court is unable to make declarations about who the parents of a child are, unless it's necessary in order to deal with another issue, like a claim about child support or guardianship.
 
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:
The Provincial Court can hear claims about these issues:


*guardianship,
*guardianship of children,
*parental responsibilities and parenting time,
*parental responsibilities and parenting time,
*contact with a child,
*contact with a child,
*child support,
*child support,
*spousal support,
*spousal support,
*companion animals (the one form of family property that it can deal with)
*changing and cancelling Provincial Court orders,
*changing and cancelling Provincial Court orders,
*enforcing Provincial Court orders,
*enforcing Provincial Court orders,
*enforcing Supreme Court orders about guardianship, parental responsibilities, parenting time, and contact, and
*enforcing Supreme Court orders about guardianship, parental responsibilities, parenting time, and contact, and
*relocation.
*moving away, with or without a child.


===Court proceedings===
===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.
The Provincial Court has special rules just for family law proceedings, the [https://canlii.ca/t/b8rn Provincial Court Family Rules]. Within these rules, there are also different procedures to follow depending on the type of registry, and this means the rules can vary significantly depending where you are. It's important to know which type of registry your family law matter is filed at. The types and locations are:
* ''Early Resolution Registries'' (currently Victoria and Surrey), which follow a much different process (including what forms to use) from the other registries &mdash; luckily this is well explained on the [https://bit.ly/4d5xCpG BC Ministry of Attorney General's website], and discussed generally in the [[Resolving Family Law Problems in Court]] chapter.
* ''Family Justice Registries'' (Kelowna, Nanaimo, and Vancouver (Robson Square)), which require parties to go through a family needs assessment at the very beginning.
* ''Parenting Education Program Registries'', are the default type of registry found in the remaining registry locations of the Provincial Court. Unless you’re in Kelowna, Nanaimo, Surrey, Vancouver, or Victoria, this will be the registry type you'll deal with. (If your matter is in Kamloops, and it looks like it's going to trial, you might need to learn about that registry's new ''Informal Family Court Trials'' pilot, which is explained on the [https://www.provincialcourt.bc.ca/enews/enews-16-05-2022 Provincial Court's website], and on [https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/informal-trials-kamloops-court-registry Legal Aid BC's Family Law website].
 
Regardless of which type of Provincial Court registry is handling your family law matter, it's important that you read and understand the Provincial Court Family Rules. The rules 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 [https://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Practice Directions] issued by the Chief Judge, which clarify certain aspects of the rules of court and describe additional processes and procedures.
 
====Provincial Court procedure based on location of registry====
Provincial Court Family Rules changed considerably in 2021. Provincial Court procedure now depends a lot on where the parties live and in which registry the claim is filed. At the time of writing, there are effectively three types of Provincial Court registries, and three of these have some unique procedural processes:
 
'''Early Resolution Registries'''
Surrey and Victoria's Provincial Court registries now follow a new procedure designed to resolve cases without the need for going to court. The early resolution process in these registries is quite a different procedure compared to traditional Provincial Court procedure. The good news is that many people will find the process more straight forward, less complex, and less adversarial.
 
'''Family Justice Registries'''
Kelowna, Nanaimo, and Vancouver's Provincial Court registries have a special process for court applications that involve children. Before the Court hears any applications, the parties have to take a parenting course and meet with a family justice counsellor to do a ''family needs assessment''.
 
'''Parenting Education Program Registries'''
All of the other Provincial Court registries require that parties who are parents of children under 19 take a parenting after separation course in most cases. A certificate of completion of the parenting after separation course is filed with the registry, and this lets you proceed to make court applications.


====Procedure====
====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 person who starts a proceeding in the Provincial Court is the ''applicant''. The person against whom the court proceeding is brought is the ''respondent''.
An applicant starts by filing a form, although a different form is needed for ''Early Resolution Registries'' than in other Provincial Court registry locations. To read more about the Early Resolution process in Victoria and Surrey see the [https://bit.ly/4d5xCpG BC Ministry of Attorney General's website], which also makes available a brochure with a simplified process map. The procedures explained below do not apply to the Early Resolution Registries.


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.
In most Provincial Court registries you start by filing an Application About a Family Law Matter in [[PCFR Form 3 Application About a Family Law Matter|Form 3]] and then serving it on each person named as a respondent. The form must be ''personally served'' on the respondent by an adult other than the applicant &mdash; you can't do it yourself. The respondent has 30 days to answer the claim by filing a Reply to an Application About a Family Law Matter in [[PCFR Form 6 Reply to an Application About a Family Law Matter|Form 6]] at the court registry. The court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a ''counter application'', the respondent's own claim against the applicant. A respondent who does not file a Reply to an Application About a Family Law Matter 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.
After the proceeding has been started, registry locations usually require the parties (if there is a matter involving children) to attend a ''parenting after separation course'', and the Family Justice Registries further require the parties to meet with a ''family justice counsellor'' for a family needs assessment before they can go to see 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]].
The parties' first appearance before a judge is normally at a ''family management conference'', where the judge (or a family justice manager, but we'll just refer to the judge for simplicity's sake) will see if the parties can resolve their issues early on. A family management conference is a private meeting between the parties, their lawyers &mdash; if they have lawyers &mdash; and the judge. In general, a judge will not make orders at a family management conference except with the parties' agreement, but the judge can direct the parties to hold another family management conference, or to go to a family settlement conference, if the first meeting ends before a resolution is agreed to. All of these early conferences can be very helpful as they provide a great opportunity to talk about the legal issues and explore potential areas of compromise.  


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 Family Law Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].
After the family management conference, ''interim applications'' &mdash; applications for temporary orders &mdash; can be made formally, triggering another hearing.  


Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving it on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).
If the legal issues in the court proceeding aren't settled, there will be a ''trial''. At the trial, each side will present their evidence and their arguments, and the judge will make a decision about the legal issues, called a ''judgment.'' The judgment will describe not only the judge's ''final orders'' on the legal issues, but the judge's decisions about the facts of the case and the law that applies to the case.


<span style="color:#D2691E">'''Important changes'''</span> <br />
Court procedures are covered in the [[Resolving Family Law Problems in Court]] chapter.  
The rules used by the Provincial Court for family law disputes are changing. As well, special processes are now being used by the Provincial Court in Victoria and Surrey. If you have a family law case in the Victoria and Surrey courthouses, speak to the court staff about how your case is affected.


====Addressing the court====
====Addressing the court====
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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.
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/t/8q3k#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]''.
According to [https://canlii.ca/t/8q3k#section233 s. 233(1)] of the ''[[Family Law Act]]'', only final orders may be appealed. In a 2011 case called [https://canlii.ca/t/fkmwm ''Dima v Dima''], the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[https://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.
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.
Line 105: Line 121:
==The Supreme Court==
==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.
Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with a particular issue, the Supreme Court is where you will have to go. 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.
There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees &mdash; fees for services like filing documents, photocopying, starting a court proceeding, or having a trial &mdash; are also payable 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.
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 [http://canlii.ca/t/8mcr Supreme Court Family Rules], are complicated and are applied strictly. The assistance of a lawyer is highly recommended.


===Court jurisdiction===
===Court jurisdiction===


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


*the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
*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]]'',
*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'',
*can divide family property and family debt, and make orders respecting companion animals, 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]'',
*may divide assets between people who aren't spouses under either 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
*may make orders for the protection of property, and
*the Supreme Court hears appeals from decisions of the Provincial Court.
*hears appeals from decisions of the Provincial Court.


===Court proceedings===
===Court proceedings===


The Supreme Court has special rules just for family law proceedings, the [http://canlii.ca/t/8mcr 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 [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [https://www.bccourts.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.
The Supreme Court has special rules just for family law proceedings, the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules, or at least the rules that talk about the specific procedure you are dealing with. 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 [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Practice Directions] and [https://www.bccourts.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====
====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''.  
Most Supreme Court family law proceedings are started by filing a ''Notice of Family Claim'' (Form F3 of the Supreme Court Family Forms) in court. 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 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.
Notices of Family Claim and Petitions must be ''personally served'' on the other party by an adult other than the claimant or petitioner. You cannot serve the other side yourself.


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.
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 used to describe 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 Family Law Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].
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 an associate judge or judge to talk about the legal issues and see whether any of them can be settled. The associate judge 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, even difficult ones, sometimes settle at judicial case conferences!
''Interim applications'', applications for temporary orders, can be made by filing a ''Notice of Application'' (Form F31) and an ''Affidavit'' (Form F30) in court. An affidavit is a person's written evidence, which the person swears or affirms 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.  


Interim applications and 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 Family Law Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].
If the legal issues in the court proceeding aren't settled, there will be a ''trial''. At the trial, each side will present their evidence and their arguments, and the judge will make a decision about the legal issues, called a ''judgment''. The judgment will describe not only the judge's ''final orders'' on the legal issues, but the judge's decisions about the facts of the case and the law that applies to the case.


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


====Addressing the court====
====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 mainly with interim applications. Justices can also hear interim applications, but also conduct trials and hear applications to change final orders.
There are two kinds of judicial officials at the Supreme Court that hear applications and trials, ''associate judges'' and ''justices'', both of whom we'll refer to as "judges" for convenience.  
 
Associate judges (called ''masters'' until January 2024 when their title was changed) deal with a wide variety of applications in Supreme Court Chambers, but they do not have the full range of judicial authority that a ''justice'' has, and they do not have the authority to make final orders. Associate judges deal mainly with interim applications and hear judicial cases conferences. Associate judges of the Supreme Court are addressed as "Your Honour."


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."
Justices can also hear interim applications and judicial cases conferences, but are mostly assigned to hear trials and applications to change final orders. Until a couple years ago, justices were addressed by the ancient-sounding terms "My Lord" or "My Lady," or, if you wanted, as "Your Lordship" or "Your Ladyship." As of the end of 2021, a justice of the BC Supreme Court is to be addressed as "Chief Justice", "Associate Chief Justice", "Justice", "Madam Justice", or "Mr. Justice" as the context requires. The old terms "My Lord", "My Lady", "Your Lordship", and "Your Ladyship" are to be avoided.


====Appeals====
====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 orders of associate judges may be ''appealed'' to a justice of the Supreme Court. A party appealing the order of an associate judge must file a ''Notice of Appeal'' (Form F98) in the Supreme Court within 14 days of the date the order was made.
 
Interim and final orders of justices of the Supreme Court are ''appealed'' to the Court of Appeal. This is a more rigorous process. An appeal of a justice's order to the Court of appeal must be brought within 30 days of the date of the order. Appeals of interim orders are generally ''limited appeal orders'' and require the permission of the Court of Appeal before they will be heard. This permission is called ''leave''. Appeals of final orders don't need leave to proceed. Appeals to the Court of Appeal proceed under the ''[[https://canlii.ca/t/b96x Court of Appeal Act]]'' and the [https://canlii.ca/t/bgkw Court of Appeal's rules of court] and court forms.


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 associate judges or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.


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.
See [[How Do I Appeal an Interim Supreme Court Decision?]] and [[How Do I Appeal an Interim Supreme Court Decision?]] under the Helpful Guides & Common Questions section for more information on appealing Supreme Court orders.


==The Court of Appeal==
==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.
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 and certain legal questions referred to it by the government of British Columbia. 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.
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 with the result. 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 benefits you will get even if you are completely successful.


===Court proceedings===
===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 [https://www.bccourts.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.
If you are involved in a proceeding before the Court of Appeal, you must read the ''[https://canlii.ca/t/b96x Court of Appeal Act]'' and the [https://canlii.ca/t/bgkw Court of Appeal Rules]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper you have to use for court documents. (I'm not kidding. The rules even say what kind of font and type size you have to use!) 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 [https://www.bccourts.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.
While it is possible to represent yourself in the Court of Appeal, and lots of people do, the court requires very strict compliance with its rules and forms. The assistance of a lawyer is highly recommended.


====Procedure====
====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.
Appeals of final Supreme Court orders are discussed in the Helpful Guides & Common Questions section under [[How Do I Appeal a Final Supreme Court Decision?]]. They must be started within 30 days of the date the order was made. 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 to file a ''Notice of Appearance'', and may serve their own ''Notice of Cross Appeal'', which is only necessary if the respondent also wants to appeal the Supreme Court's order and is asking for different orders than the appellant.


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.
''Interim applications'', applications for temporary orders, can be made in the Court of Appeal subject to the rules on them being ''limited appeal orders''. Appeals of interim Supreme Court orders are discussed in the Helpful Guides & Common Questions section under [[How Do I Appeal a Interim Supreme Court Decision?]].  


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 [http://canlii.ca/t/85bg Court of Appeal Rules] very carefully!
Applications are rarely brought to the Court of Appeal, but when they are, the rules say the hearing of the application must be completed within 30 minutes.


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''.
All appeals are based on the evidence before the judge who made the original decision. The Court of Appeal does not hear evidence from witnesses and rarely considers evidence that was not presented to the trial judge. Before an appeal can be heard, the appellant must:
 
#get transcripts of all of the oral evidence at trial, and transcripts can be hideously expensive to obtain,
#prepare an ''appeal record'' with the Notice of Appeal, and all of the pleadings filed in the Supreme Court proceeding plus the order at issue and reasons for judgment, and
#prepare an ''appeal book with'' all of the documents used as evidence at trial.
 
(By "book" I mean that the paper is securely bound in some way. Lawyers often use ''cerlox'' or ''comb binding'', and businesses that provide photocopying services will usually be able to bind paper like this.)
 
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 [https://canlii.ca/t/bgkw Court of Appeal Rules] very carefully!
 
Applications for leave to appeal, when they are required, are heard by one judge.
 
Appeals are heard by a ''panel'' of three judges, but 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 the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel, and the result of the appeal, is the decision of a majority of the judges on the panel; the judge or judges who disagree with the majority decision are said to ''dissent'' and may write a separate decision, called a ''dissenting judgment''.


====Addressing the court====
====Addressing the court====
Not too long ago, justices of the Court of Appeal were addressed as "My Lord" or "My Lady". This outdated convention has now changed, as it had throughout most of Canada before BC. Justices are to be referred to as "Chief Justice", "Justice", "Madam Justice", "Mr. Justice" or, collectively, as "Justices", according to the context.


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."
The old terms "My Lady”, "My Lord", "Your Ladyship" or "Your Lordship" are now to be avoided. The BC Court of Appeal has over 15 judges, and it also has a registrar, who is another court official that hears select court matters. In a registrar's hearing, the registrar is addressed as "Your Honour".


====Appeals====
====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.
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 in a family law dispute. Read the Helpful Guides & Common Questions section under [[How Do I Appeal a Court of Appeal Decision?]].


==Resources and links==
==Resources and links==
Line 190: Line 224:
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* ''[http://canlii.ca/t/84h4 Court of Appeal Act]''
* ''[http://canlii.ca/t/b96x Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[[Family Law Act]]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[[Divorce Act]]''
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/844v Judicial Review Procedure 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]''
* ''[http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution Acts, 1867 to 1982]''
* [http://canlii.ca/t/b8rn Provincial Court Family Rules]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/bgkw Court of Appeal Rules]


===Resources===
===Resources===


* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms Provincial Court Family Forms]
* [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms Supreme Court Family Forms]
* [https://www.bccourts.ca/Court_of_Appeal/practice_and_procedure/Civil_Rules_Forms.aspx BC Court of Appeal Civil Rules Forms]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* [https://www.bccourts.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* [https://www.bccourts.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* [https://family.legalaid.bc.ca/resources/family-law-bc-quick-reference-tool "Family Law in BC: Quick Reference Tool"] from Legal Aid BC
* [https://perma.cc/WA4T-DAG6 "Preparing for a Family Court Trial in Provincial Court"] from the Provincial Court of British Columbia
* ''[https://canlii.ca/t/srvn The CanLII Manual to British Columbia Civil Litigation]''
* [https://family.legalaid.bc.ca/bc-legal-system Legal Aid BC's Family Law website's information page "BC Legal System"]


===Links===
===Links===
Line 214: Line 255:
* [https://www.bccourts.ca/supreme_court/index.aspx Supreme Court website]
* [https://www.bccourts.ca/supreme_court/index.aspx Supreme Court website]
* [https://www.bccourts.ca/Court_of_Appeal/index.aspx Court of Appeal website]
* [https://www.bccourts.ca/Court_of_Appeal/index.aspx Court of Appeal website]
* [http://canlii.org CanLII]
* [https://canlii.org CanLII]
* [https://www.clicklaw.bc.ca/resource/4640 Legal Services Society's Family Law website's information page "BC Legal System"]




{{REVIEWED | reviewer = [[Bob Mostar]] and [[Mark Norton]], June 8, 2017}}
{{REVIEWED | reviewer = [[Nate Russell]], 19 November 2023}}


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

Latest revision as of 22:50, 2 August 2024

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Resolving Problems in Court
 · The Court System
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
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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 about the legal claims people bring before them. The Court of Appeal only hears appeals. It listens to arguments about why a trial judge may have made the wrong decision about a claim, and may confirm, change or cancel a trial judge's decision.

The Provincial Court deals with a limited variety of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and can deal with all issues and all claims; their jurisdiction is limited only by their rules and by 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, when the Court of Common Pleas was established by Henry II in the late 12th Century. Before this, people would come to the king or queen on special days set aside for the hearing of "petitions," legal 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, whether they liked it or not, 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. This was the origin of the Court of Common Pleas, and it marked the start of the English common law as the specially-appointed people, judges, were sent out to tour the country and resolve legal problems on behalf of the king or queen. Eventually, the monarchy got out of the business altogether and left the hearing of petitions entirely to the judges. The English court system became more complex as time went on, and different types of courts, like the Court of Equity, the Court of the Exchequer and the Court of Wards and Liveries, 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. The laws of England were adopted by British Columbia after the two colonies were joined by the proclamation of Governor Sir James Douglas on 19 November 1858, shown below. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

1858 Proclamation of Governor Sir James Douglas
1858 Proclamation of Governor Sir James Douglas

The fundamental purpose of the courts today is the same as it was then: to resolve people's legal 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 have merged the different types of courts into a single system with the authority to decide every sort of legal 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 that they have been wrongfully dismissed, to a driver's complaint that someone else was responsible for an accident and should pay for the damage it caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in an impartial and unbiased manner, free from any interference by the government or influence by the parties.

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 at the bottom of the pile and the Court of Appeal being at the top. 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 resolved; they are our trial courts. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts; they are our appellate courts.

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, called 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 often discourages people from arguing about their legal disputes after they've gone through a trial.

Making the choice of forum

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

The Provincial Court deals with issues relating to parenting children, child support, spousal support, companion animals, and orders protecting people under the provincial Family Law Act. The Supreme Court has the authority to deal with all of those issues, but can also deal with issues about parentage, dividing property and debt, and orders protecting property under the provincial act. Only the Supreme Court has the authority to make orders under the federal Divorce Act, including orders for divorce. There's a chart showing which court can deal with which issue in the Family Law in British Columbia chapter of the Getting Started part of this resource.

The rules of the Supreme Court can be very complicated and fees are charged for many steps in the court process, including filing the paperwork that starts a court proceeding, making an application, or going to trial. The rules of the Provincial Court are shorter and more straightforward, and the court doesn't charge any fees.

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. It can be complicated to split your family law issues between two courts. A lot of people find it easier just to deal with everything in one court. Because of the limits of the authority of the Provincial Court, that court is usually the Supreme Court.

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 (with the exception of companion animals) or family debt, the management of children's property, or orders protecting property. It cannot make any orders under the Divorce Act. The Provincial Court is unable to make declarations about who the parents of a child are, unless it's necessary in order to deal with another issue, like a claim about child support or guardianship.

The Provincial Court can hear claims about these issues:

  • guardianship of children,
  • parental responsibilities and parenting time,
  • contact with a child,
  • child support,
  • spousal support,
  • companion animals (the one form of family property that it can deal with)
  • changing and cancelling Provincial Court orders,
  • enforcing Provincial Court orders,
  • enforcing Supreme Court orders about guardianship, parental responsibilities, parenting time, and contact, and
  • moving away, with or without a child.

Court proceedings

The Provincial Court has special rules just for family law proceedings, the Provincial Court Family Rules. Within these rules, there are also different procedures to follow depending on the type of registry, and this means the rules can vary significantly depending where you are. It's important to know which type of registry your family law matter is filed at. The types and locations are:

  • Early Resolution Registries (currently Victoria and Surrey), which follow a much different process (including what forms to use) from the other registries — luckily this is well explained on the BC Ministry of Attorney General's website, and discussed generally in the Resolving Family Law Problems in Court chapter.
  • Family Justice Registries (Kelowna, Nanaimo, and Vancouver (Robson Square)), which require parties to go through a family needs assessment at the very beginning.
  • Parenting Education Program Registries, are the default type of registry found in the remaining registry locations of the Provincial Court. Unless you’re in Kelowna, Nanaimo, Surrey, Vancouver, or Victoria, this will be the registry type you'll deal with. (If your matter is in Kamloops, and it looks like it's going to trial, you might need to learn about that registry's new Informal Family Court Trials pilot, which is explained on the Provincial Court's website, and on Legal Aid BC's Family Law website.

Regardless of which type of Provincial Court registry is handling your family law matter, it's important that you read and understand the Provincial Court Family Rules. The rules 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 certain aspects of the rules of court and describe additional processes and procedures.

Provincial Court procedure based on location of registry

Provincial Court Family Rules changed considerably in 2021. Provincial Court procedure now depends a lot on where the parties live and in which registry the claim is filed. At the time of writing, there are effectively three types of Provincial Court registries, and three of these have some unique procedural processes:

Early Resolution Registries Surrey and Victoria's Provincial Court registries now follow a new procedure designed to resolve cases without the need for going to court. The early resolution process in these registries is quite a different procedure compared to traditional Provincial Court procedure. The good news is that many people will find the process more straight forward, less complex, and less adversarial.

Family Justice Registries Kelowna, Nanaimo, and Vancouver's Provincial Court registries have a special process for court applications that involve children. Before the Court hears any applications, the parties have to take a parenting course and meet with a family justice counsellor to do a family needs assessment.

Parenting Education Program Registries All of the other Provincial Court registries require that parties who are parents of children under 19 take a parenting after separation course in most cases. A certificate of completion of the parenting after separation course is filed with the registry, and this lets you proceed to make court applications.

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.

An applicant starts by filing a form, although a different form is needed for Early Resolution Registries than in other Provincial Court registry locations. To read more about the Early Resolution process in Victoria and Surrey see the BC Ministry of Attorney General's website, which also makes available a brochure with a simplified process map. The procedures explained below do not apply to the Early Resolution Registries.

In most Provincial Court registries you start by filing an Application About a Family Law Matter in Form 3 and then serving it on each person named as a respondent. The form must be personally served on the respondent by an adult other than the applicant — you can't do it yourself. The respondent has 30 days to answer the claim by filing a Reply to an Application About a Family Law Matter in Form 6 at the court registry. The court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counter application, the respondent's own claim against the applicant. A respondent who does not file a Reply to an Application About a Family Law Matter is not entitled to notice of further hearings in the case!

After the proceeding has been started, registry locations usually require the parties (if there is a matter involving children) to attend a parenting after separation course, and the Family Justice Registries further require the parties to meet with a family justice counsellor for a family needs assessment before they can go to see 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.

The parties' first appearance before a judge is normally at a family management conference, where the judge (or a family justice manager, but we'll just refer to the judge for simplicity's sake) will see if the parties can resolve their issues early on. A family management conference is a private meeting between the parties, their lawyers — if they have lawyers — and the judge. In general, a judge will not make orders at a family management conference except with the parties' agreement, but the judge can direct the parties to hold another family management conference, or to go to a family settlement conference, if the first meeting ends before a resolution is agreed to. All of these early conferences can be very helpful as they provide a great opportunity to talk about the legal issues and explore potential areas of compromise.

After the family management conference, interim applications — applications for temporary orders — can be made formally, triggering another hearing.

If the legal issues in the court proceeding aren't settled, there will be a trial. At the trial, each side will present their evidence and their arguments, and the judge will make a decision about the legal issues, called a judgment. The judgment will describe not only the judge's final orders on the legal issues, but the judge's decisions about the facts of the case and the law that applies to the case.

Court procedures are covered in the Resolving Family Law Problems in Court chapter.

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 2011 case called Dima v Dima, 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 a particular issue, the Supreme Court is where you will have to go. 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, photocopying, starting a court proceeding, or having a trial — are also payable 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 the authority to deal with all of 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,
  • can deal with claims under the Divorce Act, including making divorce orders, as well as claims under the Family Law Act,
  • can divide family property and family debt, and make orders respecting companion animals, under the Family Law Act,
  • may divide assets between people who aren't spouses under either the common law, like the law of trusts, or under legislation, like the Land Title Act or the Partition of Property Act,
  • may make orders for the protection of property, and
  • 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, or at least the rules that talk about the specific procedure you are dealing with. 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 a Notice of Family Claim (Form F3 of the Supreme Court Family Forms) in court. 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 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. You cannot serve the other side yourself.

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 used to describe 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 an associate judge or judge to talk about the legal issues and see whether any of them can be settled. The associate judge 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, even difficult ones, sometimes settle at judicial case conferences! Interim applications, applications for temporary orders, can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) in court. An affidavit is a person's written evidence, which the person swears or affirms 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.

If the legal issues in the court proceeding aren't settled, there will be a trial. At the trial, each side will present their evidence and their arguments, and the judge will make a decision about the legal issues, called a judgment. The judgment will describe not only the judge's final orders on the legal issues, but the judge's decisions about the facts of the case and the law that applies to the case.

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

Addressing the court

There are two kinds of judicial officials at the Supreme Court that hear applications and trials, associate judges and justices, both of whom we'll refer to as "judges" for convenience.

Associate judges (called masters until January 2024 when their title was changed) deal with a wide variety of applications in Supreme Court Chambers, but they do not have the full range of judicial authority that a justice has, and they do not have the authority to make final orders. Associate judges deal mainly with interim applications and hear judicial cases conferences. Associate judges of the Supreme Court are addressed as "Your Honour."

Justices can also hear interim applications and judicial cases conferences, but are mostly assigned to hear trials and applications to change final orders. Until a couple years ago, justices were addressed by the ancient-sounding terms "My Lord" or "My Lady," or, if you wanted, as "Your Lordship" or "Your Ladyship." As of the end of 2021, a justice of the BC Supreme Court is to be addressed as "Chief Justice", "Associate Chief Justice", "Justice", "Madam Justice", or "Mr. Justice" as the context requires. The old terms "My Lord", "My Lady", "Your Lordship", and "Your Ladyship" are to be avoided.

Appeals

Interim orders of associate judges may be appealed to a justice of the Supreme Court. A party appealing the order of an associate judge must file a Notice of Appeal (Form F98) in the Supreme Court within 14 days of the date the order was made.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal. This is a more rigorous process. An appeal of a justice's order to the Court of appeal must be brought within 30 days of the date of the order. Appeals of interim orders are generally limited appeal orders and require the permission of the Court of Appeal before they will be heard. This permission is called leave. Appeals of final orders don't need leave to proceed. Appeals to the Court of Appeal proceed under the [Court of Appeal Act] and 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 associate judges or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

See How Do I Appeal an Interim Supreme Court Decision? and How Do I Appeal an Interim Supreme Court Decision? under the Helpful Guides & Common Questions section for more information on appealing Supreme Court orders.

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 and certain legal questions referred to it by the government of British Columbia. 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 with the result. 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 benefits you will get even if you are completely successful.

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 Rules. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper you have to use for court documents. (I'm not kidding. The rules even say what kind of font and type size you have to use!) 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, and lots of people do, the court requires very strict compliance with its rules and forms. The assistance of a lawyer is highly recommended.

Procedure

Appeals of final Supreme Court orders are discussed in the Helpful Guides & Common Questions section under How Do I Appeal a Final Supreme Court Decision?. They must be started within 30 days of the date the order was made. 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 to file a Notice of Appearance, and may serve their own Notice of Cross Appeal, which is only necessary if the respondent also wants to appeal the Supreme Court's order and is asking for different orders than the appellant.

Interim applications, applications for temporary orders, can be made in the Court of Appeal subject to the rules on them being limited appeal orders. Appeals of interim Supreme Court orders are discussed in the Helpful Guides & Common Questions section under How Do I Appeal a Interim Supreme Court Decision?.

Applications are rarely brought to the Court of Appeal, but when they are, the rules say the hearing of the application must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. The Court of Appeal does not hear evidence from witnesses and rarely considers evidence that was not presented to the trial judge. Before an appeal can be heard, the appellant must:

  1. get transcripts of all of the oral evidence at trial, and transcripts can be hideously expensive to obtain,
  2. prepare an appeal record with the Notice of Appeal, and all of the pleadings filed in the Supreme Court proceeding plus the order at issue and reasons for judgment, and
  3. prepare an appeal book with all of the documents used as evidence at trial.

(By "book" I mean that the paper is securely bound in some way. Lawyers often use cerlox or comb binding, and businesses that provide photocopying services will usually be able to bind paper like this.)

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!

Applications for leave to appeal, when they are required, are heard by one judge.

Appeals are heard by a panel of three judges, but 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 the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel, and the result of the appeal, is the decision of a majority of the judges on the panel; the judge or judges who disagree with the majority decision are said to dissent and may write a separate decision, called a dissenting judgment.

Addressing the court

Not too long ago, justices of the Court of Appeal were addressed as "My Lord" or "My Lady". This outdated convention has now changed, as it had throughout most of Canada before BC. Justices are to be referred to as "Chief Justice", "Justice", "Madam Justice", "Mr. Justice" or, collectively, as "Justices", according to the context.

The old terms "My Lady”, "My Lord", "Your Ladyship" or "Your Lordship" are now to be avoided. The BC Court of Appeal has over 15 judges, and it also has a registrar, who is another court official that hears select court matters. In a registrar's hearing, the registrar is addressed as "Your Honour".

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 in a family law dispute. Read the Helpful Guides & Common Questions section under How Do I Appeal a Court of Appeal Decision?.

Resources and links

Legislation

Resources

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Nate Russell, 19 November 2023.


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