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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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| text = '''Note:''' This page has been assembled by Drew from several different pages that JP created: [[Introduction to the Legal System]], [[Introduction to the Legal System ~ The Law]], [[Introduction to the Legal System ~ The Courts]], . - Dec 21/12 | | text = '''Note:''' This page has been assembled by Drew from several different pages that JP created: [[Introduction to the Legal System]], [[Introduction to the Legal System ~ The Law]], [[Introduction to the Legal System ~ The Courts]], [[Introduction to the Legal System ~ Court Process]]. - Dec 21/12 | ||
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Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to. | Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to. | ||
==Court Process== | |||
All court processes start and end more or less the same way. You must file a particular form in court and serve 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 he or she was served, you can ask for a judgment in default. That's about it. | |||
In the Provincial Court, you can start a court proceeding by filing an ''Application to Obtain an Order''. The other party has 30 days after being served to file a ''Reply''. | |||
In the Supreme Court, court proceedings are 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. | |||
Eventually, there will be a hearing, trial or application for default judgment in the Provincial Court or the Supreme Court that will result in a final order that puts an end to the dispute. | |||
In most family law proceedings, 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 case conference, if you're in the Provincial Court; | |||
#produce financial documents and other documents that are important; | |||
#attend an examination for discovery, if you're in the Supreme Court; and, | |||
#go to one or more interim applications. | |||
An interim application is an application to the court for a temporary order, called an interim order, before trial. Interim applications and these other processes are all discussed elsewhere in this website. | |||
If either party is unhappy with the result of the hearing or trial and can show that the judge made a mistake, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of the Supreme Court are appealed to the Court of Appeal. | |||
An appeal is started by filing a ''Notice of Appeal'', or, depending on the circumstances, a ''Notice of Application for Leave to 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 a final order that puts and 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. | |||
===Trial Basics=== | |||
A trial is the testing of a legal claim before a judge with the authority to decide the issue. A claim might be that someone has been negligent which caused harm to the person making the claim, or it might be that one spouse should pay spousal support to the other spouse. A claim is "tested" in the sense that the judge's job is to see whether the evidence and the law support the claim. | |||
The person who started the court proceeding will go first and presents his or her evidence. Evidence at trial is almost always given by witnesses and through documents like bank records, income tax returns and photographs; in rare cases, the evidence of a witness can also be given by an affidavit. The other party goes next and presents the evidence supporting his or her side of the case. When all of the evidence has been presented to the judge, each party tells the judge why the facts and the law why the judge should decide the case as they think it should be decided. | |||
In every case that goes to trial, and, to be clear, not every case does, the judge who hears the case first makes a decision about the what the facts of the case are after listening to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding of fact". The judge then reviews the law and the rules and legal principles that might apply, and decides what law applies to the legal issues. This is called making a "finding of law". The judge makes a decision about the legal claim by applying the law to the facts. | |||
Sometimes the judge is able to make a decision after hearing all the evidence and party's arguments about why what they say should happen should happen. Most of the time, however, the judge will need to think about the evidence and the law before he or she can make a decision. This is called a "reserved judgment". | |||
===Appeal Basics=== | |||
The decision of the judge at the trial can be challenged to a higher court. A decision of the Provincial Court is appealed to the the Supreme Court, and a decision of the Supreme Court is appealed to the Court of Appeal. Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada, but only if the court agrees to hear the appeal. | |||
An appeal is not a chance to have a new trial, introduce new evidence or call additional witnesses, and you don't get to appeal a decision just because you're unhappy with how things turned out. Appeals generally only concern whether the judge used the right law and applied the law correctly. This is what the Court of Appeal said about the nature of appeals in the 2011 case of ''Basic v. Strata Plan LMS 0304'': | |||
<blockquote>Consideration of this appeal must start, as all appeals do, recalling that the role of this court is not that of a trial court. Rather, our task is to determine whether the judge made an error of law, found facts based on a misapprehension of the evidence, or found facts that are not supported by evidence. Even where there is such an error of fact, we will only interfere with the order if the error of fact is material to the outcome.</blockquote> | |||
An appeal court does not hear new evidence or make decisions about the facts of a case; the appeal court will accept the trial judge's findings of fact. If the appeal court is satisfied that the trial made a mistake about the law, however, the appeal may succeed. | |||
Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three or five judges. At the hearing, the person who started the appeal will go first and will explain why the trial judge made a mistake about the law. The other party goes next and explains why the trial judge appropriately considered the applicable legal principles and why the judge was right. Sometimes the court is able to make a decision after hearing from each party, but the court will usually need to consider things before making a decision. | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||