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Difference between revisions of "The Law for Family Matters"
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Because family law issues can be very broad and touch on other areas of law, such as contract law or company law, other pieces of legislation may also apply to a problem. For example, the ''[http://canlii.ca/t/8481 Name Act]'' allows a spouse to change her name following a divorce, the ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with adoption, the ''[http://canlii.ca/t/8456 Land Title Act]'' deals with real property, the ''[http://canlii.ca/t/848q Partition of Property Act]'' allows a co-owner of real property to force the sale of the property, and the ''[http://canlii.ca/t/84ld Business Corporations Act]'' deals with the incorporation of companies, shareholders' loans and other things that may be important if a spouse owns or controls a company. | Because family law issues can be very broad and touch on other areas of law, such as contract law or company law, other pieces of legislation may also apply to a problem. For example, the ''[http://canlii.ca/t/8481 Name Act]'' allows a spouse to change her name following a divorce, the ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with adoption, the ''[http://canlii.ca/t/8456 Land Title Act]'' deals with real property, the ''[http://canlii.ca/t/848q Partition of Property Act]'' allows a co-owner of real property to force the sale of the property, and the ''[http://canlii.ca/t/84ld Business Corporations Act]'' deals with the incorporation of companies, shareholders' loans and other things that may be important if a spouse owns or controls a company. | ||
==Choosing the | ==Choosing the law and the court== | ||
Both the federal ''Divorce Act'' and the provincial ''Family Law Act'' deal with family law issues. As well, both the Provincial Court and the Supreme Court have the authority to hear proceedings dealing with family law issues. Deciding which legislation you are going to make your claim under is called making the ''choice of law''. Deciding in which court you are going to bring your claim is called making the ''choice of forum''. | Both the federal ''Divorce Act'' and the provincial ''Family Law Act'' deal with family law issues. As well, both the Provincial Court and the Supreme Court have the authority to hear proceedings dealing with family law issues. Deciding which legislation you are going to make your claim under is called making the ''choice of law''. Deciding in which court you are going to bring your claim is called making the ''choice of forum''. | ||
===Jurisdictional | ===Jurisdictional issues=== | ||
Because of the rules set out in the ''Constitution Act, 1867'', the federal government has the sole authority to make laws on the following subjects: | Because of the rules set out in the ''Constitution Act, 1867'', the federal government has the sole authority to make laws on the following subjects: | ||
#marriage | #marriage, | ||
#divorce | #divorce, | ||
#spousal support and child support | #spousal support and child support, and | ||
#custody of and access to children. | #custody of and access to children. | ||
Because of the same statute, provincial governments have exclusive authority to make laws dealing with these subjects: | Because of the same statute, provincial governments have exclusive authority to make laws dealing with these subjects: | ||
#the formalities of the marriage ceremony | #the formalities of the marriage ceremony, | ||
#spousal support and child support | #spousal support and child support, | ||
#guardianship, parental responsibilities and parenting time | #guardianship, parental responsibilities and parenting time, | ||
#contact with children | #contact with children, | ||
#the division of family property and family debt | #the division of family property and family debt, | ||
#adoption | #adoption, | ||
#child welfare | #child welfare, and | ||
#changes of name. | #changes of name. | ||
To further complicate things, the Provincial Court and the Supreme Court can make orders about some of the same subjects, but not all, under some of the same legislation, but not all. The Provincial Court can only deal with applications involving laws made by the provincial government and, even then, it cannot deal with applications involving the division of a property or debt, or adoption. In family law proceedings, the Provincial Court can only deal with applications involving the following subjects: | To further complicate things, the Provincial Court and the Supreme Court can make orders about some of the same subjects, but not all, under some of the same legislation, but not all. The Provincial Court can only deal with applications involving laws made by the provincial government and, even then, it cannot deal with applications involving the division of a property or debt, or adoption. In family law proceedings, the Provincial Court can only deal with applications involving the following subjects: | ||
#guardianship, parental responsibilities, parenting time and contact under the ''Family Law Act'' | #guardianship, parental responsibilities, parenting time and contact under the ''Family Law Act'', | ||
#spousal support and child support under the ''Family Law Act'' | #spousal support and child support under the ''Family Law Act'', | ||
#the enforcement of such orders made under the ''Family Law Act'' | #the enforcement of such orders made under the ''Family Law Act'', and | ||
#protection orders under the ''Family Law Act''. | #protection orders under the ''Family Law Act''. | ||
The Supreme Court, on the other hand, can deal with all of these | The Supreme Court, on the other hand, can deal with all of these subjects and everything else, like divorce and other claims under the ''Divorce Act''. | ||
If you wish to make a claim for an order for divorce, adoption, determining the parentage of a child, management of children's property, the division of family property and family debt, or the protection of family property, you must make your application to the Supreme Court. Otherwise, you can make your claim in either court. | If you wish to make a claim for an order for divorce, adoption, determining the parentage of a child, management of children's property, the division of family property and family debt, or the protection of family property, you must make your application to the Supreme Court. Otherwise, you can make your claim in either court. | ||
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Making matters worse, there can be simultaneous court proceedings involving the same people, and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, an action for a couple's divorce can be before the Supreme Court at the same time as an application about parental responsibilities and spousal support is being heard by the Provincial Court. In such a circumstance, either party can make an application that the proceedings in the Provincial Court be joined with those in the Supreme Court so that both court proceedings are heard at the same time before the same court. | Making matters worse, there can be simultaneous court proceedings involving the same people, and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, an action for a couple's divorce can be before the Supreme Court at the same time as an application about parental responsibilities and spousal support is being heard by the Provincial Court. In such a circumstance, either party can make an application that the proceedings in the Provincial Court be joined with those in the Supreme Court so that both court proceedings are heard at the same time before the same court. | ||
===The | ===The choice of law=== | ||
If you wish to obtain a divorce, you must make your claim under the ''Divorce Act''. If you wish to obtain an order dealing with property or debt, you must make your claim under the ''Family Law Act''. However, if you wish to apply for an order for almost anything else and you are married, you may make your claim under either piece of legislation. | If you wish to obtain a divorce, you must make your claim under the ''Divorce Act''. If you wish to obtain an order dealing with property or debt, you must make your claim under the ''Family Law Act''. However, if you wish to apply for an order for almost anything else and you are married, you may make your claim under either piece of legislation. | ||
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===The | ===The choice of forum=== | ||
In family law matters, choosing the ''forum'' of a court proceeding means making the choice to proceed in either the Provincial Court or the Supreme Court. The Provincial Court has certain limits to its authority and, as a result has limits on the kinds of claims it can hear. The Supreme Court has the authority to deal with every almost legal issue within British Columbia. It also has something called "inherent jurisdiction", meaning that the Supreme Court, unlike the Provincial Court, is not limited to the authority it is given by legislation. It is safe to say that, as far as family matters are concerned, the Supreme Court can deal with everything the Provincial Court can as well as everything it can't. | In family law matters, choosing the ''forum'' of a court proceeding means making the choice to proceed in either the Provincial Court or the Supreme Court. The Provincial Court has certain limits to its authority and, as a result has limits on the kinds of claims it can hear. The Supreme Court has the authority to deal with every almost legal issue within British Columbia. It also has something called "inherent jurisdiction", meaning that the Supreme Court, unlike the Provincial Court, is not limited to the authority it is given by legislation. It is safe to say that, as far as family matters are concerned, the Supreme Court can deal with everything the Provincial Court can as well as everything it can't. | ||
The process of each court is guided by each court's set of rules. The Supreme Court Family Rules offer a much wider variety of tools and remedies than the Provincial Court | The process of each court is guided by each court's set of rules. The [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] offer a much wider variety of tools and remedies than the [http://canlii.ca/t/85pb Provincial Court Family Rules], particularly in terms of the information and documents each side can make the other produce in the course of a proceeding. For example, the Supreme Court rules allow a party to make the another party submit to an Examination for Discovery, or make a company or third party produce records. These disclosure mechanisms are not available in the Provincial Court. | ||
You may want to think about the relative complexity of the two courts' sets of rules, particularly if you plan to represent yourself and not hire a lawyer. The Provincial Court's rules are written in plain language and are fairly straightforward. The Supreme Court Family Rules are much more complicated and aren't written in the most easy to understand language. | You may want to think about the relative complexity of the two courts' sets of rules, particularly if you plan to represent yourself and not hire a lawyer. The Provincial Court's rules are written in plain language and are fairly straightforward. The Supreme Court Family Rules are much more complicated and aren't written in the most easy to understand language. | ||