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Difference between revisions of "Understanding the Legal System for Family Law Matters"
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Understanding the Legal System for Family Law Matters (view source)
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{{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = intro}}{{JPBOFL Editor Badge | ||
| | |CoAuthor= [[JP Boyd]] | ||
}} | }} | ||
{{LSSbadge | {{LSSbadge | ||
|resourcetype = more information on | |resourcetype = more information on | ||
|link = [ | |link = [https://family.legalaid.bc.ca/bc-legal-system the legal system] | ||
}}In its broadest sense, ''the legal system'' refers to how laws and policies are made, how we decide which problems are legal problems, all of the ways that legal problems are addressed, all of the people involved in resolving legal problems — including politicians, government staff, judges, prosecutors, lawyers, court administrators, mediators, arbitrators, and mental health professionals — and all of the people experiencing legal problems. This chapter takes a narrow view of the legal system, but it's the view that we see in movies and on television, where all legal problems are resolved in court by a judge after listening to lawyers arguing about the law. | }}In its broadest sense, ''the legal system'' refers to how laws and policies are made, how we decide which problems are legal problems, all of the ways that legal problems are addressed, all of the people involved in resolving legal problems — including politicians, government staff, judges, prosecutors, lawyers, court administrators, mediators, arbitrators, and mental health professionals — and all of the people experiencing legal problems. This chapter takes a narrow view of the legal system, but it's the view that we see in movies and on television, where all legal problems are resolved in court by a judge after listening to lawyers arguing about the law. | ||
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There are four divisions of the Provincial Court: Criminal and Youth Court, which mostly deals with charges under the ''Criminal Code'' and the ''Youth Criminal Justice Act''; Small Claims Court, which deals with claims about contracts, services, property, and debt; Traffic and Bylaw Court, which deals with traffic tickets and provincial and municipal offences; and, Family Court, which deals with certain claims under the ''Family Law Act'', the ''Child, Family and Community Service Act'' and the ''Family Maintenance Enforcement Act.'' | There are four divisions of the Provincial Court: Criminal and Youth Court, which mostly deals with charges under the ''Criminal Code'' and the ''Youth Criminal Justice Act''; Small Claims Court, which deals with claims about contracts, services, property, and debt; Traffic and Bylaw Court, which deals with traffic tickets and provincial and municipal offences; and, Family Court, which deals with certain claims under the ''Family Law Act'', the ''Child, Family and Community Service Act'' and the ''Family Maintenance Enforcement Act.'' | ||
The jurisdiction of the Provincial Court is narrower than the Supreme Court. The Provincial Court only deals with the subjects assigned to it by the provincial government. 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 with a value of between $5,001 to $35,000, and Family Court cannot deal with claims involving family property or family debt, or hear claims under the ''Divorce Act''. Each branch of the Provincial Court has its own set of procedural rules and its own court forms. | The jurisdiction of the Provincial Court is narrower than the Supreme Court. The Provincial Court only deals with the subjects assigned to it by the provincial government. 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 with a value of between $5,001 to $35,000, and Family Court cannot deal with claims involving family property or family debt (with the exception of declaration of pet ownership between spouses), or hear 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==== | ||
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==Court processes== | ==Court processes== | ||
All court processes start and end more or less the same way. You must file a particular form in court and serve the filed document 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 they were served, you can ask for a judgment in default. That's about it in a nutshell. | All court processes start and end more or less the same way. You must file a particular form in court and serve the filed document 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 they were served, you can ask for a judgment in default. That's about it in a nutshell. The chapter on [[Resolving Family Law Problems in Court]], especially the sections that are continuously updated in the online version of ''JP Boyd on Family Law'', address these processes. | ||
In the Provincial Court, you | In the Provincial Court, you generally start a court proceeding by filing an ''Application About a Family Law Matter'' in Form 3. The other party has 30 days after being served to file a ''Reply to an Application About a Family Law Matter'' in Form 6. Read [How Do I Start a Family Law Action in the Provincial Court?] in the Helpful Guides & Common Questions part of this resource for more information. | ||
In the Supreme Court, court proceedings are usually 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. | In the Supreme Court, court proceedings are usually 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. [How Do I Start a Family Law Action in the Supreme Court?] in the Helpful Guides & Common Questions part of this resource also contains more information. | ||
Eventually, there will be a hearing, a trial, or an application for default judgment if a responding document isn't filed, in the Provincial Court or the Supreme Court. The trial will result in a final order that puts an end to the legal dispute, unless, that is, someone decides to appeal the final order. | Eventually, there will be a hearing, a trial, or an application for default judgment if a responding document isn't filed, in the Provincial Court or the Supreme Court. The trial will result in a final order that puts an end to the legal dispute, unless, that is, someone decides to appeal the final order. | ||
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In family law disputes, things rarely go from starting the proceeding straight to trial. Along the way you will likely have to: | In family law disputes, 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 | #attend a ''judicial case conference'', if you're in the Supreme Court, or a ''family management conference'', if you're in the Provincial Court, | ||
#make or reply to one or more ''interim applications'', | #make or reply to one or more ''interim applications'', | ||
#''produce financial documents and other documents'' that are relevant to the claims in the dispute, and | #''produce financial documents and other documents'' that are relevant to the claims in the dispute, and | ||
#attend an ''examination for discovery'', if you're in the Supreme Court. | #attend an ''examination for discovery'', if you're in the Supreme Court. | ||
If either party is unhappy with the result of a trial and can show that the judge made a <span class="noglossary">mistake</span>, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of | If either party is unhappy with the result of a trial and can show that the judge made a <span class="noglossary">mistake</span>, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of a Supreme Court judge are appealed to the Court of Appeal. Consult the various appeals-related guides under the Helpful Guides & Common Questions part of this wikibook. | ||
You start an appeal by filing a ''Notice of | You start an appeal by filing a ''Notice of 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 another final order that puts an 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. | Eventually, there will be a hearing that will result in another final order that puts an 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. | ||
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Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three judges. (Really important appeals are sometimes heard by a panel of five judges.) At the appeal hearing, the person who started the appeal, the ''appellant'', <span class="noglossary">will</span> go first and try to explain why the trial judge made a <span class="noglossary">mistake</span> about the law. The other party, the ''respondent'', <span class="noglossary">will</span> go next and explain why the trial judge appropriately considered the applicable legal principles and why the judge was right. The appellant will then be able to provide a short reply to the respondent's arguments. Sometimes the court is able to make a decision after hearing from each party but, like at trial, the court usually reserves its decision to think about the arguments that each side made. | Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three judges. (Really important appeals are sometimes heard by a panel of five judges.) At the appeal hearing, the person who started the appeal, the ''appellant'', <span class="noglossary">will</span> go first and try to explain why the trial judge made a <span class="noglossary">mistake</span> about the law. The other party, the ''respondent'', <span class="noglossary">will</span> go next and explain why the trial judge appropriately considered the applicable legal principles and why the judge was right. The appellant will then be able to provide a short reply to the respondent's arguments. Sometimes the court is able to make a decision after hearing from each party but, like at trial, the court usually reserves its decision to think about the arguments that each side made. | ||
The | The Helpful Guides and Common Questions part of this resource has details about the procedures for making an appeal. You may want to look at these topics: | ||
* | *[[How Do I Appeal a Provincial Court Decision?]] | ||
* | *[[How Do I Appeal an Interim Supreme Court Decision?]] | ||
* | *[[How Do I Appeal a Final Supreme Court Decision?]] | ||
* | *[[How Do I Appeal a Court of Appeal Decision?]] | ||
==Representing yourself== | ==Representing yourself== | ||
{{Clicklawbadge | |||
| resourcetype = many helpful resources from the | |||
| link = [https://www.clicklaw.bc.ca/organization/solveproblems/1199 National Self-Represented Litigants Project (NSRLP)]}} | |||
There is no rule that says that you must 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. | There is no rule that says that you must 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. | ||
If you do decide to represent yourself in a court proceeding, you have a responsibility to the other parties and to the court to learn about the law that applies to your proceeding and the procedural rules that govern common court processes, like document disclosure, and common court processes, like making and replying to interim applications. | If you do decide to represent yourself in a court proceeding, you have a responsibility to the other parties and to the court to learn about the law that applies to your proceeding and the procedural rules that govern common court processes, like document disclosure, and common court processes, like making and replying to interim applications. | ||
A good start would be to read through the other sections in this chapter on | A good start would be to read through the other sections in this chapter on [[The Law for Family Matters]], and [[You and Your Lawyer]], as well as the section on [[The Court System for Family Matters]] within the [[Resolving Family Law Problems in Court]] chapter. You might also want to read a short note I've written for people who are representing themselves in a court proceeding, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF). | ||
To find out what to expect in the courtroom, read | To find out what to expect in the courtroom, read | ||
[[How Do I Conduct Myself in Court at an Application?]]. It's located in the Helpful Guides & Common Questions part of this resource, in the section [[JP Boyd on Family Law - Helpful Guides and Common Questions#Courtroom Protocol|Courtroom Protocol]]. | |||
Sometimes people begin a court action with a lawyer, and then start to represent themselves. If you do this, you need to notify the other parties and the court of the change. See | Sometimes people begin a court action with a lawyer, and then start to represent themselves. If you do this, you need to notify the other parties and the court of the change. See [[How Do I Tell Everyone That I'm Representing Myself?]]. It's located in the Helpful Guides & Common Questions part of this resource. | ||
==Resources and links== | ==Resources and links== | ||
===Legislation=== | ===Legislation=== | ||
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*[https://www.clicklaw.bc.ca/resource/4900 Family Law Handbook] from the Canadian Judicial Council | *[https://www.clicklaw.bc.ca/resource/4900 Family Law Handbook] from the Canadian Judicial Council | ||
*[https://www.clicklaw.bc.ca/resource/4039 Guide to Preparing for a Family Court Trial in Provincial Court] from the Provincial Court of BC | *[https://www.clicklaw.bc.ca/resource/4039 Guide to Preparing for a Family Court Trial in Provincial Court] from the Provincial Court of BC | ||
*[https://www.clicklaw.bc.ca/organization/solveproblems/1199 The National Self-Represented Litigants Project resources] | |||
*Legal Aid BC's [https://family.legalaid.bc.ca/ Family Law in BC] website | |||
===Links=== | ===Links=== | ||
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{{REVIEWED | reviewer = [[JP Boyd]], 18 November 2023}} | |||
{{REVIEWED | reviewer = [[JP Boyd]], 18 | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
