Understanding the Legal System for Family Law Matters: Difference between revisions
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Understanding the Legal System for Family Law Matters (view source)
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#your ex is refusing to provide support and you need financial help; or, | #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. | #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: | |||
<blockquote><tt>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.</tt></blockquote> | |||
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. | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
