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; the Court of Appeal only hears appeals. The Provincial Court has limited authority, but the Supreme Court and the Court of Appeal are our province's superior courts and their jurisdiction is limited only by their rules and the constitution.

These pages provide an overview of the nature and jurisdiction of the Provincial Court, the Supreme Court and the Court of Appeal.

Introduction

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king 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, the king would make a decision and impose his judgment on the parties, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them called judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions only 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 imported 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 the confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve 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.

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 his or her property, to an employee's complaint of wrongful dismissal, 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 just, impartial and unbiased manner, free from any interference by the government.

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 the lowest level of court and the Court of Appeal being the highest. 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 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 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, factors which generally discourage carrying cases beyond trial.

Making the Choice of Forum

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

The Provincial Court can only deal 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 pronounce an order for divorce or make other orders under the Divorce Act, or deal with the division of family property and family debts.

On top of that, the rules of the Supreme Court can be very complicated and fees are charged for common activities, like starting a proceeding, making an application or booking a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

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. However, it can become confusing to manage two separate court proceedings, and you have to be careful not to bring up issues in one court that are being dealt with by the other court.

Provincial Court

The Provincial Court is usually the most accessible court for people who aren't represented by a lawyer. The rules which govern the court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and in fact most people who use the Provincial Court don't have a lawyer. There are also a lot more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court: Criminal and Youth Court; Small Claims Court; Traffic and Bylaw Court; and, Family Court. Provincial (Family) Court deals with certain claims under the Family Law Act.

Court 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 financial restraining orders, and cannot make orders under the Divorce Act. The Provincial Court cannot make declarations about the parentage of a child except in connection with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

1. child support;
2. spousal support;
3. changing Provincial Court orders for child support or spousal support;
4. arrears of child support or spousal support;
5. guardianship, parental responsibilities and parenting time;
6. contact with a child;
7. enforcing Supreme Court about the care of children, child support or spousal support;
8. enforcing or cancelling agreements about the care of children, child support or spousal support; and,
9. relocation with a child.

Court Proceedings

The Provincial Court has special rules just for family law proceedings; if you are involved in a proceeding before 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 proceeding to the hearing of the trial, set out important deadlines and limitations, and say what court forms must be used for which purpose.

Procedure Summary

The person who starts a proceeding in the Provincial Court is the applicant. The person against whom the proceeding is brought is the respondent.

The applicant starts a proceeding by filing an Application to Obtain an Order in Form 1 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 reply to the claim by filing a Reply in 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.

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.

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 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.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion in Form 16. It is always best to file an Affidavit in Form 17 with the Notice of Motion. An affidavit is a a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths.

Applications to change final orders are made by filing an Application to Change or Cancel an Order in Form 2 and serving on the other parties. The other parties have 30 days to reply by filing a Reply in Form 3.

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, and must be started within 40 days of the date the final order was made.

Pursuant to s. 233(1) of the Family Law Act, only final orders may be appealed. In Dima v. Dima, a 2011 case, 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.

An order that is appealed remains in effect unless the judge who made the order says otherwise.