The Court System for Family Matters

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

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, 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 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,
• 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.

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 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 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, even difficult ones, sometimes settle at judicial case conferences! There's more information about judicial case conferences in the chapter Resolving Family Law Problems in Court in the section on 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. There's more information about interim applications in the chapter Resolving Family Law Problems in Court in the section on 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) 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, masters and justices, both of whom we'll refer to as "judges" for convenience.

Masters deal with a wide variety of applications in Supreme Court Chambers. They deal mainly with interim applications and hear judicial cases conferences. Masters 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. Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

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 (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 and must be brought within 30 days of the date of the order. Appeals of interim orders require the permission of the Court of Appeal before they will be heard, called leave. Appeals of final orders don't need leave to proceed. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms. Appeals of interim orders start by filing a Notice of Application for Leave to Appeal (Form 1) in court, while appeals of final orders start by filing a Notice of Appeal (Form 7). Both Notices of Application for Leave to Appeal and Notices of Appeal must be served on the other parties.

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.

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 started by filing a Notice of Appeal (Form 7) in court, and 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 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 and is asking for different orders than the appellant.

Interim applications, applications for temporary orders, can be made in the Court of Appeal by filing a Notice of Motion (Form 6) and serving the Notice on the other parties. Applications are rarely brought to this court, 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 a book with all of the documents used as evidence at trial, and
3. prepare a book with all of the pleadings filed in the Supreme Court proceeding.

(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

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."

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.

Resources and links

Legislation

• Provincial Court Act
• Supreme Court Act
• Court of Appeal Act
• Court Rules Act
• Family Law Act
• Divorce Act
• Interjurisdictional Support Orders Act
• Judicial Review Procedure Act
• Constitution Acts, 1867 to 1982
• Provincial Court Family Rules
• Supreme Court Family Rules
• Court of Appeal Rules

Resources

• Provincial Court Family Forms
• Supreme Court Family Forms
• BC Court of Appeal Civil Rules Forms
• Provincial Court Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Court of Appeal Practice Directives
• "Family Law in BC: Quick Reference Tool" from Legal Aid BC
• "Preparing for a Family Court Trial in Provincial Court" from the Provincial Court of British Columbia

Links

• Courts of British Columbia website
• Provincial Court website
• Supreme Court website
• Court of Appeal website
• CanLII
• Legal Services Society's Family Law website's information page "BC Legal System"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 19 February 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.