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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)
Revision as of 17:00, 12 July 2019
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==Court processes== | ==Court processes== | ||
All court processes start and end more or less the same way. You must file a particular form in court and serve the filed document 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 they were served, you can ask for a judgment in default. That's about it. | All court processes start and end more or less the same way. You must file a particular form in court and serve the filed document 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 they were 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 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''. | ||
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A trial is the presentation and testing of a legal claim before a judge with the authority to decide the claim. 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. | A trial is the presentation and testing of a legal claim before a judge with the authority to decide the claim. 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. | ||
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. | 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 person who started the court proceeding will go first and presents their evidence. The other party goes next and presents the evidence supporting their 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 show that the judge should decide the case in their favour. | The person who started the court proceeding will go first and presents their evidence. The other party goes next and presents the evidence supporting their 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 show that the judge should decide the case in their favour. | ||
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The decision of the judge at the trial can be challenged to a designated court of review. A decision of the Provincial Court is appealed to 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. | The decision of the judge at the trial can be challenged to a designated court of review. A decision of the Provincial Court is appealed to 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. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231: | An appeal is not a chance to have a new trial, introduce new evidence, or call additional witnesses. 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 [http://canlii.ca/t/flgwf ''Basic v. Strata Plan LMS 0304''], 2011 BCCA 231: | ||
<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> | <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 very rarely hears new evidence or makes 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 <span class="noglossary">mistake</span> about the law, however, the appeal may succeed. | An appeal court very rarely hears new evidence or makes 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 judge made a <span class="noglossary">mistake</span> 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 <span class="noglossary">mistake</span> 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. | 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 <span class="noglossary">mistake</span> 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. | ||