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The Law for Family Matters (view source)
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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 ''Name Act'' allows a spouse to change her name following a divorce, the ''Adoption Act'' deals with adoption, the ''Land Title Act'' deals with real property, the ''Partition of Property Act'' allows a co-owner of real property to force the sale of the property, and the ''Companies 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 ''Name Act'' allows a spouse to change her name following a divorce, the ''Adoption Act'' deals with adoption, the ''Land Title Act'' deals with real property, the ''Partition of Property Act'' allows a co-owner of real property to force the sale of the property, and the ''Companies 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 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 a "choice of law." Deciding in which court you are going to bring your claim is called making a "choice of forum." | |||
===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: | |||
#marriage; | |||
#divorce; | |||
#spousal support and child support; and, | |||
#custody of and access to children. | |||
Because of the same statute, provincial governments have exclusive authority to make laws dealing with these subjects: | |||
#the formalities of the marriage ceremony; | |||
#spousal support and child support; | |||
#guardianship, parental responsibilities and parenting time; | |||
#contact with children; | |||
#the division of family property and family debt; | |||
#adoption; | |||
#child welfare; and, | |||
#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: | |||
#the enforcement of custody, access and support orders made under the federal ''Divorce Act''; | |||
#guardianship, parental responsibilities, parenting time and contact 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''; and, | |||
#protection orders under the ''Family Law Act''. | |||
The Supreme Court, on the other hand, can deal with: | |||
<ol start="6"> | |||
<li>everything. | |||
</ol> | |||
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. | |||
Making matters worse, there can be simultaneous 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 their children 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 consolidated with those in the Supreme Court so that the proceedings are all heard at the same time and before one court. | |||
===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. | |||
There are one or two points you may wish to consider, however. Only married spouses make make applications under the ''Divorce Act''. Unmarried spouses and other unmarried people may make applications for relief under the ''Family Law Act'' alone. Also, if your proceeding is before the Provincial Court, you must make your claim under the ''Family Law Act''. If your case is before the Supreme Court, you may claim under either the ''Divorce Act'' or the ''Family Law Act'', or under both. | |||
The following chart shows which law deals with which issue: | |||
::{| width="65%" class="wikitable" | |||
!style="width: 25%"| | |||
!style="width: 20%" align="center"|''Family Law Act'' | |||
!style="width: 20%" align="center"|''Divorce Act'' | |||
|- | |||
|align="center"|'''Divorce'''|| ||align="center"|Yes | |||
|- | |||
|align="center"|'''Care of Children'''||align="center"|Guardianship and<br/>Parental Responsibiities||align="center"|Custody | |||
|- | |||
|align="center"|'''Time with Chidren'''||align="center"|Parenting Time or<br/>Contact||align="center"|Access | |||
|- | |||
|align="center"|'''Child Support'''||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Children's Property'''||align="center"|Yes|| | |||
|- | |||
|align="center"|'''Spousal Support||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Family Property and<br/>Family Debt'''||align="center"|Yes|| | |||
|- | |||
|align="center"|'''Protection Orders'''||align="center"|Yes|| | |||
|- | |||
|align="center"|'''Financial Restraining Orders'''||align="center"|Yes|| | |||
|} | |||
===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, consequently, has limits on the kinds of claims it can hear. The Supreme Court, on the other hand, 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's 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 wish to consider 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. | |||
Finally, you may also want to think about the cost of proceeding in each court. The Provincial Court charges no filing fees and has a relatively streamlined procedure. The Supreme Court charges filing fees, and the extra tools and remedies available under the Supreme Court Family Rules are helpful but will add to the cost of bringing a proceeding to trial. | |||
This chart shows which level of court can deal with which issue: | |||
::{| width="65%" class="wikitable" | |||
!style="width: 25%"| | |||
!style="width: 20%" align="center"|Provincial Court | |||
!style="width: 20%" align="center"|Supreme Court | |||
|- | |||
|align="center"|'''''Divorce Act'''''|| ||align="center"|Yes | |||
|- | |||
|align="center"|'''''Family Law Act'''''||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Divorce'''|| ||align="center"|Yes | |||
|- | |||
|align="center"|'''Care of Children'''||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Time with Chidren'''||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Child Support'''||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Children's Property'''|| ||align="center"|Yes | |||
|- | |||
|align="center"|'''Spousal Support||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Family Property and<br/>Family Debt'''|| ||align="center"|Yes | |||
|- | |||
|align="center"|'''Protection Orders'''||align="center"|Yes||align="center"|Yes | |||
|- | |||
|align="center"|'''Financial Restraining Orders'''|| ||align="center"|Yes | |||
|} | |||
While it is possible to start an action in the Provincial Court to deal with one or two issues (like parental responsibilities or child support) and later start an action in the Supreme Court to deal with other issues (like dividing family property or divorce) it's usually best to confine yourself to a single court to avoid overlaps and keep things as simple as possible. | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||