2,667
edits
Difference between revisions of "Family Law Act Basics"
From Clicklaw Wikibooks
no edit summary
| Line 521: | Line 521: | ||
If a protection order conflicts with another order made under the ''[[Family Law Act]]'', like an order for parenting time or contact with a child, the parts of the earlier order that are in conflict with the protection order are suspended until either the order is changed to remove the conflict or the protection order expires. | If a protection order conflicts with another order made under the ''[[Family Law Act]]'', like an order for parenting time or contact with a child, the parts of the earlier order that are in conflict with the protection order are suspended until either the order is changed to remove the conflict or the protection order expires. | ||
This rule applies to orders that are like protection orders | This rule applies to orders that are like ''[[Family Law Act]]'' protection orders but are made under the ''[http://canlii.ca/t/7vf2 Criminal Code]'' or under the laws of another jurisdiction. | ||
====Enforcing protection orders==== | ====Enforcing protection orders==== | ||
| Line 539: | Line 539: | ||
*parenting coordination. | *parenting coordination. | ||
People can make an agreement that they <span class="noglossary">will</span> resolve a family law problem, or a family law problem that might arise in the future, using a family dispute resolution process. | People can make an agreement that they <span class="noglossary">will</span> resolve a family law problem, or a family law problem that might arise in the future, using a family dispute resolution process rather than going to court. | ||
===How are family dispute resolution processes supported?=== | ===How are family dispute resolution processes supported?=== | ||
| Line 562: | Line 562: | ||
Court proceedings about spousal support or the division of property and debt must normally be started within two years of the date of divorce, for married spouses, or within two years of the date of separation, for unmarried spouses. Under s. 198 of the ''[[Family Law Act]]'', the countdown for the two-year limit stops while the spouses are involved in a family dispute resolution process with a family justice counsellor, mediator, lawyer, or arbitrator. | Court proceedings about spousal support or the division of property and debt must normally be started within two years of the date of divorce, for married spouses, or within two years of the date of separation, for unmarried spouses. Under s. 198 of the ''[[Family Law Act]]'', the countdown for the two-year limit stops while the spouses are involved in a family dispute resolution process with a family justice counsellor, mediator, lawyer, or arbitrator. | ||
=== | ===What is mediation?=== | ||
Family justice counsellors, mediators, and lawyers who have special additional training can help people resolve a family law dispute through mediation. | Family justice counsellors, mediators, and lawyers who have special additional training can help people resolve a family law dispute through mediation. In mediation, the mediator helps people reach their own settlement. Although some mediators also give information about the law and may offer an opinion about a person’s position, mediators do not make decisions for people and do not have the power to impose a settlement. | ||
In mediation, the mediator helps people reach their own settlement. Although some mediators also give information about the law and may offer an opinion about a person’s position, mediators do not make decisions for people and do not have the power to impose a settlement. | |||
When mediation is successful, the parties <span class="noglossary">will</span> usually sign a separation agreement to document their settlement. Separation agreements can be filed in court and be enforced like court orders. | When mediation is successful, the parties <span class="noglossary">will</span> usually sign a separation agreement to document their settlement. Separation agreements can be filed in court and be enforced like court orders. | ||
| Line 572: | Line 570: | ||
More information about mediation is available in the [[Resolving Family Law Problems out of Court]] chapter in the section on [[Family Law Mediation]]. | More information about mediation is available in the [[Resolving Family Law Problems out of Court]] chapter in the section on [[Family Law Mediation]]. | ||
=== | ===What are collaborative processes?=== | ||
Lawyers who have special additional training can help people resolve a family law dispute through collaborative settlement processes. When people agree to use a collaborative process, they and their lawyers sign an agreement that they <span class="noglossary">will</span> use their best efforts to resolve the dispute outside of court, and that if the parties do have to go to court they <span class="noglossary">will</span> hire new lawyers. | Lawyers who have special additional training can help people resolve a family law dispute through collaborative settlement processes. When people agree to use a collaborative process, they and their lawyers sign an agreement that they <span class="noglossary">will</span> use their best efforts to resolve the dispute outside of court, and that if the parties do have to go to court they <span class="noglossary">will</span> hire new lawyers. | ||
| Line 586: | Line 584: | ||
More information about collaborative settlement processes is available in the [[Resolving Family Law Problems out of Court]] chapter in the section on [[Collaborative Processes]]. | More information about collaborative settlement processes is available in the [[Resolving Family Law Problems out of Court]] chapter in the section on [[Collaborative Processes]]. | ||
=== | ===What is arbitration?=== | ||
Although arbitration can be a lot like going to court, it has a lot of advantages over court processes: | In arbitration, a person with special training, often a lawyer, resolves a family law dispute by making a decision, called an ''award,'' that is binding on the parties like a court order. Although arbitration can be a lot like going to court, it has a lot of advantages over court processes: | ||
*the arbitration hearing can be scheduled whenever everybody is available without having to wait on trial scheduling, | *the arbitration hearing can be scheduled whenever everybody is available without having to wait on trial scheduling, | ||
| Line 603: | Line 599: | ||
More information about arbitration is available in the [[Resolving Family Law Problems out of Court]] chapter in the section on [[Family Law Arbitration]]. | More information about arbitration is available in the [[Resolving Family Law Problems out of Court]] chapter in the section on [[Family Law Arbitration]]. | ||
=== | ===What is parenting coordination?=== | ||
Social workers, counsellors, psychologists, mediators, and lawyers who have special additional training can help people resolve disputes about the care of children through parenting coordination. Parenting coordinators are appointed by the parties’ agreement or by a court order, and are appointed for terms ranging from six months to two years. A parenting coordinator’s appointment can be renewed. | Social workers, counsellors, psychologists, mediators, and lawyers who have special additional training can help people resolve disputes about the care of children through parenting coordination. Parenting coordinators are appointed by the parties’ agreement or by a court order, and are appointed for terms ranging from six months to two years. A parenting coordinator’s appointment can be renewed. | ||
| Line 623: | Line 619: | ||
===Which court deals with which family law problem?=== | ===Which court deals with which family law problem?=== | ||
The powers of the Provincial Court are pretty much the same under the ''Family Law Act'' as they were under the old ''Family Relations Act''. The Supreme Court can deal with all family law problems, but the Provincial Court can only deal with problems about the care of children, child support, and spousal support. | The powers of the Provincial Court are pretty much the same under the ''[[Family Law Act]]'' as they were under the old ''[http://canlii.ca/t/ldg3 Family Relations Act]''. The Supreme Court can deal with all family law problems, but the Provincial Court can only deal with problems about the care of children, child support, and spousal support. | ||
As a result, the Provincial Court can make declarations about the parentage of a child, but only if | As a result, the Provincial Court can make declarations about the parentage of a child, but only if the declaration is necessary to handle a claim within its jurisdiction. The Provincial Court can also enforce agreements and orders, but only the parts of agreements or orders that are within its jurisdiction. | ||
===What happens when there’s a proceeding in each court?=== | ===What happens when there’s a proceeding in each court?=== | ||
Starting a court proceeding in one court doesn’t stop an proceeding being started in the other court, unless the claims made in the second proceeding have already been dealt with by the first court. Section 194 of the ''Family Law Act'' talks about what happens when there is a proceeding in each court: | Starting a court proceeding in one court doesn’t stop an proceeding being started in the other court, unless the claims made in the second proceeding have already been dealt with by the first court. Section 194 of the ''[[Family Law Act]]'' talks about what happens when there is a proceeding in each court: | ||
*the making of an order by one court doesn’t stop an application in the other court, unless the application is about the same thing as the order made by the first court, | *the making of an order by one court doesn’t stop an application in the other court, unless the application is about the same thing as the order made by the first court, | ||
| Line 637: | Line 633: | ||
The Supreme Court can change a Provincial Court order to accommodate an order it is making. The Supreme Court cannot otherwise change Provincial Court orders except as the result of an appeal. | The Supreme Court can change a Provincial Court order to accommodate an order it is making. The Supreme Court cannot otherwise change Provincial Court orders except as the result of an appeal. | ||
=== | ===How does the court manage court processes and people in court?=== | ||
====Guiding principles==== | ====Guiding principles==== | ||
The ' | The '[[Family Law Act]]'' says that court proceedings should be run with as little delay and formality as possible, and in a way that promotes cooperation between parties and protects adults and children from family violence. The court is also required to encourage parties to focus on the best interests of their children and minimize the effect of their conflict on their children. | ||
The court is required to encourage parties to focus on the best interests of their children and minimize the effect of their conflict on their children. | |||
====Preventing misuse of court processes==== | ====Preventing misuse of court processes==== | ||
If a party is frustrating or misusing the court process, the court can make an order prohibiting the party from making further applications without permission. When making such orders, the court can also: | If a party is frustrating or misusing the court process, the court can make an order prohibiting the party from making further applications without permission under s. 221. When making such orders, the court can also: | ||
#make the order last for a specific period of time, or until the party has complied with another order, | #make the order last for a specific period of time, or until the party has complied with another order, | ||
| Line 655: | Line 649: | ||
====Conduct orders==== | ====Conduct orders==== | ||
Under s. 222 of the ' | Under s. 222 of the '[[Family Law Act]]'', the court may make a ''conduct order'' to: | ||
#encourage settlement, | #encourage settlement, | ||
| Line 670: | Line 664: | ||
Note that conduct orders restricting communication can also be made as protection orders. | Note that conduct orders restricting communication can also be made as protection orders. | ||
====Case management orders==== | ====Case management orders==== | ||
| Line 681: | Line 674: | ||
===How are orders enforced?=== | ===How are orders enforced?=== | ||
Some orders, like orders about parenting time and contact, have their own enforcement procedures. Where an order under the ''Family Law Act'' doesn't have a specific enforcement procedure, the general enforcement provisions of the | Some orders, like orders about parenting time and contact, have their own enforcement procedures. Where an order under the ''[[Family Law Act]]'' doesn't have a specific enforcement procedure, the general enforcement provisions of the act are used. Under s. 230, the court may enforce an order by requiring a party to: | ||
#post security in court to guarantee his or her future good behaviour, | #post security in court to guarantee his or her future good behaviour, | ||
| Line 712: | Line 705: | ||
{{REVIEWED | reviewer = [[JP Boyd]], | {{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}} | ||
{{JP Boyd on Family Law Navbox|type=started}} | {{JP Boyd on Family Law Navbox|type=started}} | ||
{{Creative Commons for JP Boyd}} | {{Creative Commons for JP Boyd}} | ||
[[Category:JP Boyd on Family Law]] | [[Category:JP Boyd on Family Law]] | ||
