Difference between revisions of "Understanding the Legal System for Family Law Matters"
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===The Supreme Court of Canada=== | ===The Supreme Court of Canada=== | ||
The highest level of court in the country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provinces' courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with hearing appeals. | The highest level of court in the country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provinces' courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with <span class="noglossary">hearing</span> appeals. | ||
Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to. | Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to. |
Revision as of 18:19, 27 December 2012
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Note: This page is the latest page and the one to continue working on. It was assembled by Drew from several different pages that JP created: Introduction to the Legal System, Introduction to the Legal System ~ The Law, Introduction to the Legal System ~ The Courts, Introduction to the Legal System ~ Court Process, and Introduction to the Legal System ~ Representing Yourself. - Dec 21/12 |
There are three key components to the legal system: the law, the courts, and the people involved in the court process. In a legal dispute, the parties present their competing claims to the court, and the judge who hears the case applies the law to the facts and makes a decision which resolves the dispute.
These pages provide a brief introduction and an overview of the basic elements of the legal system. The pages that follow discuss our legal system in much further detail and provide useful sample documents and court forms that you can use to help draft your own materials.
Introduction
When some couples separate, they just separate and it's over and done with. For other couples, separation raises a bunch of practical and legal problems. If a couple have children, they'll have to decide where the children will mostly live, how decisions will be made about parenting issues will be made, how much time each parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has property, they'll have to decide who should keep what.
First, then, you need to identify the legal problems you have to deal with.
When a couple have problems like these, they also have to decide how they'll solve those problems. In other words, they need to pick the legal process they'll use to figure everything out and get to a resolution. Some couples go to a trusted friend, family member or community leader for help. Others go to court. Others use a mediator to help them find a solution. Others just talk it out.
Second, you need to select the process you'll use to solve the legal problems.
In its narrowest sense, the legal system refers to the parties, the judges, the court staff and the lawyers that make up the litigation process, and of course the laws and rules that guide the litigation process. Litigation is only one of the choices you have in finding a solution to your family law problems. Other options include negotiation, mediation, collaborative processes and arbitration.
Choosing the Right Process
Many people see court as their first and only choice. That might be true if your landlord is trying to evict you unfairly, if your business partner has broken a deal, if you've had a car accident and ICBC won't pay, or if you're suing some huge corporation. It is certainly not true for family law problems.
Deciding Not to Litigate
You could, for example, sit down over a cup of coffee and simply talk about the problem. You could hire a family law mediator to mediate your problems, work through your emotions and come up with a solution that you're both as happy with as possible. You could hire a lawyer to negotiate a solution for you, or you could let the lawyer assist you as you work through the mediation process. There's also collaborative law, in which everybody has their own lawyer and their own divorce coach, and they agree to work through their problems without ever going to court. There's also arbitration, in which the parties hire a family law arbitrator to serve their own personal judge and chose the rules that will guide the process.
In almost all cases, negotiation and mediation, and even arbitration, are better choices than litigation. They all cost a lot less than litigation, they offer you the best chance of getting to a solution that you're both happy with, and they give you the best chance of maintaining a civil relationship with your ex after the dust has settled. Whatever you do, it's very important that you get legal advice from a lawyer in your area since most laws change from province to province and from state to state.
Despite the obvious benefits of avoiding litigation, most people still go to court when they have the problem. Why? Usually because they are angry, sometimes because they want revenge. Sometimes because they see a bigger threat to their personal and financial well-being than really exists; sometimes because they can't trust their ex any more and simply don't know what to do next. Sometimes, it's because they are emotionally immature and can't get through their anger to return to a more rational, common sense point of view.
Today, the legal system isn't just about judges and courts, lawyers and the law. It also includes mediation, arbitration, negotiation and collaborative law. If you have a family law problem, litigation is not your only choice. You have options.
When Litigation Makes Sense
Sometimes litigation is your smartest choice; sometimes there's just no other option except litigation.
You'll need to start a court proceeding if you've tried to resolve things out of court but can't reach a final agreement. For some people, prolonging the conflict is a way of continuing a relationship past separation; others are afraid to commit to a final agreement for fear of the future. Still others refuse to accept anything less than their best-case outcome and don't see the financial and emotional benefits of settlement.
If your ex has started a court proceeding, on the other hand, you'll have to participate in the litigation or you risk the court making an order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court proceedings also settle short of trial. Settlement can still be reached through negotiation, mediation or collaborative processes.
Even if litigation isn't underway or may not be required to resolve your dispute, you may want to start a court proceeding if:
- there's a history of violence or abuse in your relationship;
- you or your children need to be protected from your ex;
- your ex is threatening to something drastic like take the children, hide property or rack up debt;
- your ex is refusing to disclose financial or other information;
- your ex is refusing to provide support and you need financial help; or,
- you need to demonstrate that you're serious about moving things forward toward a resolution.
The Law
When lawyers talk about they law they're talking about two kinds of law, laws made by the government and the common law.
Laws made by the government are called legislation. Important legislation in family law includes the Divorce Act, made by the federal government, and the Family Law Act, made by the provincial government. The government can also make regulations for a particular piece of legislation that might contain important additional rules or say how the legislation is to be interpreted. The most important regulation in family law is the Child Support Guidelines, a regulation to the Divorce Act.
The common law is the legal rules and principles that aren't created by the government. The common law has been developed by the court since the modern court system was established several hundreds of years ago.
Legislated Laws
Legislated laws are the rules which govern our day-to-day lives. The federal and provincial governments both have the authority to make legislation, like the provincial Motor Vehicle Act, which says how fast you can go and that you need to have a licence and insurance to drive a car, or the federal Criminal Code, which says that it's an offence to stalk someone, to steal or to shout "fire" in a crowded theatre.
Because of our constitution, each level of government can only make legislation on certain subjects, and normally the sorts of things one level of government can make rules about can't be regulated by the other level of government. For example, only the federal government can make laws about divorce, and only the provincial government can make laws about property.
The Common Law
One of the court's more important jobs is to interpret and apply legislated laws. For example, the Divorce Act says that:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.
The court has had to decide what "as is consistent with the best interests of the child" means in applying this section.
Unlike the governments' laws, which are written down, organized and codified, the common law is more of a series of principles and legal concepts which guide the courts in their process and their consideration of each case. These ideas are not organized and codified, they are found in "case law", judges' written explanations of why they have decided a particular case a particular way.
The common law provides direction and guidance on a wide variety of issues, such as how to understand legislation, the proper interpretation of contracts, the test to be applied to determine whether someone has been negligent and the rules of evidence. However, unlike legislated laws, the common law doesn't usually apply to our day-to-day lives in the sense of imposing rules that say how fast we can drive in a school zone or whether punching someone is a criminal offence.
The Courts
The fundamental purpose of the courts is to resolve legal disputes in a fair and impartial manner. The courts deal with all manner of legal disputes, from the government's claim that someone has committed a crime, to a property owner's claim that someone has trespassed on their property, to a shareholder's grievance against a company, to an employee's claim of wrongful dismissal.
No matter what the nature of the dispute is, the judge who hears the dispute must give each party the chance to tell their story and give a complete answer, listen to each party without bias, and make a fair determination resolving the dispute based on the facts and the laws which apply to the dispute.
The Courts of British Columbia
There are three levels of court in this province: the Provincial Court of British Columbia, the Supreme Court of British Columbia, and the Court of Appeal for British Columbia. Each level of court is superior to the one below it. A decision of the Provincial Court can be challenged before the Supreme Court, and a decision of the Supreme Court can be challenged before the Court of Appeal.
The Provincial Court
There are four divisions of the Provincial Court: Criminal and Youth Court, which mostly deals with charges under the Criminal Code; Small Claims Court, which deals with claims about contracts, services, property and debt; Traffic and Bylaw Court, which deals traffic tickets and provincial and municipal offences; and, Family Court, which deals with certain claims under the Family Law Act.
The jurisdiction of the Provincial Court is fairly narrow. It can only deal with the subjects assigned to it by the provincial government, and unless the government has expressly authorized the Provincial Court to deal with an issue, the Provincial Court cannot hear the case. For example, Small Claims Court, can only handle claims up to $25,000.00, and Family Court cannot deal with claims involving family property or family debt, or claims under the Divorce Act. Each branch of the Provincial Court has its own set of procedural rules and its own court forms.
The Supreme Court
The Supreme Court can deal with any claim and there is no limit to the court's authority, except for the limits set out in the court's procedural rules and in the constitution. There are three kinds of judicial official in the Supreme Court, registrars, masters and justices. Justices and masters deal with most family law problems.
There are two sets of rules in the Supreme Court, the Supreme Court Family Rules, which apply just to family law disputes, and the Supreme Court Civil Rules, which apply to all other non-criminal matters. Each set of rules has its own court forms.
The Supreme Court is a trial court, like the Provincial Court, and an appeal court. The Supreme Court hears appeals from Provincial Court decisions, and justices of the Supreme Court hear appeals from masters' decisions.
The Court of Appeal
The Court of Appeal is the highest court in British Columbia and hears appeals from Supreme Court decisions; the Court of Appeal does not hear trials. The Court of Appeal has its own set of procedural rules and its own court forms.
The Federal Courts
The Federal Court of Canada is a second court system that is parallel to the courts of British Columbia and the other provinces and territories. The Federal Court and Federal Court of Appeal only hear certain kinds of disputes, including immigration matters and tax problems.
The federal courts also deal with Divorce Act claims in those rare cases when each spouse has started a separate action for divorce on the same day but in different provinces.
The Supreme Court of Canada
The highest level of court in the country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provinces' courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with hearing appeals.
Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to.
Court Process
All court processes start and end more or less the same way. You must file a particular form in court and serve on the other party. After being served, the other party has a certain number of days to file a reply. If the other party replies there is a hearing; if the other party doesn't reply and you can prove that he or she was served, you can ask for a judgment in default. That's about it.
In the Provincial Court, you can start a court proceeding by filing an Application to Obtain an Order. The other party has 30 days after being served to file a Reply.
In the Supreme Court, court proceedings are started by filing a Notice of Family Claim, and sometimes by filing a Petition. A person served with a Notice of Family Claim has 30 days to file a Response to Family Claim and possibly a Counterclaim, a claim against the person who started the court proceeding. A person served with a Petition has 21 days to file a Response to Petition, if served in Canada, 35 days if served in the United States of America, and 49 days if served anywhere else.
Eventually, there will be a hearing, trial or application for default judgment in the Provincial Court or the Supreme Court that will result in a final order that puts an end to the dispute.
In most family law proceedings, things rarely go from starting the proceeding straight to trial. Along the way you will likely have to:
- attend a judicial case conference, if you're in the Supreme Court, or a family case conference, if you're in the Provincial Court;
- produce financial documents and other documents that are important;
- attend an examination for discovery, if you're in the Supreme Court; and,
- go to one or more interim applications.
An interim application is an application to the court for a temporary order, called an interim order, before trial. Interim applications and these other processes are all discussed elsewhere in this website.
If either party is unhappy with the result of the hearing or trial and can show that the judge made a mistake, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of the Supreme Court are appealed to the Court of Appeal.
An appeal is started by filing a Notice of Appeal, or, depending on the circumstances, a Notice of Application for Leave to Appeal, and serving the filed document on the other party, usually within 30 days of the date of the final order. The other party has a certain amount of time to file a Notice of Appearance in the Court of Appeal or a Notice of Interest for appeals from the Provincial Court to the Supreme Court.
Eventually, there will be a hearing that will result in a final order that puts and end to the appeal. Appeals heard by the Supreme Court can be appealed to the Court of Appeal, and appeals heard by the Court of Appeal can be heard by the Supreme Court of Canada, but only if that court gives permission.
Trial Basics
A trial is the testing of a legal claim before a judge with the authority to decide the issue. A claim might be that someone has been negligent which caused harm to the person making the claim, or it might be that one spouse should pay spousal support to the other spouse. A claim is "tested" in the sense that the judge's job is to see whether the evidence and the law support the claim.
The person who started the court proceeding will go first and presents his or her evidence. Evidence at trial is almost always given by witnesses and through documents like bank records, income tax returns and photographs; in rare cases, the evidence of a witness can also be given by an affidavit. The other party goes next and presents the evidence supporting his or her side of the case. When all of the evidence has been presented to the judge, each party tells the judge why the facts and the law why the judge should decide the case as they think it should be decided.
In every case that goes to trial, and, to be clear, not every case does, the judge who hears the case first makes a decision about the what the facts of the case are after listening to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding of fact". The judge then reviews the law and the rules and legal principles that might apply, and decides what law applies to the legal issues. This is called making a "finding of law". The judge makes a decision about the legal claim by applying the law to the facts.
Sometimes the judge is able to make a decision after hearing all the evidence and party's arguments about why what they say should happen should happen. Most of the time, however, the judge will need to think about the evidence and the law before he or she can make a decision. This is called a "reserved judgment".
Appeal Basics
The decision of the judge at the trial can be challenged to a higher court. A decision of the Provincial Court is appealed to the the Supreme Court, and a decision of the Supreme Court is appealed to the Court of Appeal. Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada, but only if the court agrees to hear the appeal.
An appeal is not a chance to have a new trial, introduce new evidence or call additional witnesses, and you don't get to appeal a decision just because you're unhappy with how things turned out. Appeals generally only concern whether the judge used the right law and applied the law correctly. This is what the Court of Appeal said about the nature of appeals in the 2011 case of Basic v. Strata Plan LMS 0304:
Consideration of this appeal must start, as all appeals do, recalling that the role of this court is not that of a trial court. Rather, our task is to determine whether the judge made an error of law, found facts based on a misapprehension of the evidence, or found facts that are not supported by evidence. Even where there is such an error of fact, we will only interfere with the order if the error of fact is material to the outcome.
An appeal court does not hear new evidence or make decisions about the facts of a case; the appeal court will accept the trial judge's findings of fact. If the appeal court is satisfied that the trial made a mistake about the law, however, the appeal may succeed.
Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three or five judges. At the hearing, the person who started the appeal will go first and will explain why the trial judge made a mistake about the law. The other party goes next and explains why the trial judge appropriately considered the applicable legal principles and why the judge was right. Sometimes the court is able to make a decision after hearing from each party, but the court will usually need to consider things before making a decision.
Representing Yourself
There is no rule that says that you have to have a lawyer represent you in court. Although a court proceeding can be complicated to manage and the rules of court can be confusing, you have the right to represent yourself.
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