Difference between revisions of "The Court System for Family Matters"

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m (The Court of Appeal)
 
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At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired), and a judge, to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].
 
At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired), and a judge, to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].
  
Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].
+
Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public, or court staff member able to take oaths. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Family Law Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].
  
Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).
+
Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving it on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).
  
 
====Addressing the court====
 
====Addressing the court====
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The Supreme Court has authority to deal with the same issues as the Provincial Court and more:
 
The Supreme Court has authority to deal with the same issues as the Provincial Court and more:
  
#the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
+
*the Supreme Court has ''inherent jurisdiction'', which means it can deal with every kind of legal issue,
#the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
+
*the Supreme Court can deal with claims under the ''[[Divorce Act]]'', including making divorce orders, as well as claims under the ''[[Family Law Act]]'',
#the Supreme Court can divide family property and family debt under the ''Family Law Act'',
+
*the Supreme Court can divide family property and family debt under the ''Family Law Act'',
#the Supreme Court may divide assets between people who aren't spouses under the common law like the law of trusts, or under legislation like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
+
*the Supreme Court may divide assets between people who aren't spouses under the common law, like the law of trusts, or under legislation, like the ''[http://canlii.ca/t/8456 Land Title Act]'' or the ''[http://canlii.ca/t/848q Partition of Property Act]'',
#the Supreme Court may issue restraining orders freezing financial assets, and
+
*the Supreme Court may issue restraining orders freezing financial assets, and
#the Supreme Court hears appeals from decisions of the Provincial Court.
+
*the Supreme Court hears appeals from decisions of the Provincial Court.
  
 
===Court proceedings===
 
===Court proceedings===
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A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim (Form F4). A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim (Form F5). A counterclaim is the respondent's own claim against the applicant.
 
A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim (Form F4). A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim (Form F5). A counterclaim is the respondent's own claim against the applicant.
  
In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].
+
In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers, and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Family Law Problems in Court]] in the section on [[Case Conferences in a Family Law Matter|Case Conferences]].
  
Interim applications, applications for temporary orders, can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30). An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response (Form F32) and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].
+
Interim applications and applications for temporary orders can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30). An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public, or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an Application Response (Form F32) and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Family Law Problems in Court]] in the section on [[Interim_Applications_in_Family_Matters|Interim Applications]].
  
 
Applications to change final orders are made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.
 
Applications to change final orders are made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.
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====Addressing the court====
 
====Addressing the court====
  
There are two kinds of judicial officials at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters can deal with a wide variety of applications in Supreme Court Chambers.  They deal with mainly interim applications. Justices can also hear interim applications but also conduct trials and applications to change final orders.
+
There are two kinds of judicial officials at the Supreme Court that hear applications and trials, ''masters'' and ''justices'', both of which we'll refer to as "judges" for convenience. Masters can deal with a wide variety of applications in Supreme Court Chambers.  They deal mainly with interim applications. Justices can also hear interim applications, but also conduct trials and hear applications to change final orders.
  
 
Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."
 
Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."
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==The Court of Appeal==
 
==The Court of Appeal==
  
The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops.
+
The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna, and Kamloops.
  
 
Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.
 
Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

Latest revision as of 09:44, 12 July 2019

There are three levels of court in British Columbia: the Provincial Court, the Supreme Court, and the Court of Appeal. Above all of these courts is the Supreme Court of Canada, the highest court in Canada. The Provincial Court and the Supreme Court are trial courts. They listen to witnesses and hear arguments and make decisions. The Court of Appeal only hears appeals. It listens to arguments about why the trial judge may have been wrong and sometimes cancels the trial decision.

The Provincial Court deals with certain kinds of issues and claims. The Supreme Court and the Court of Appeal are our province's superior courts and they can deal with all issues and claims; their jurisdiction is limited only by their rules and the constitution.

This section provides an introduction to the Provincial Court, the Supreme Court, and the Court of Appeal.

Introduction[edit]

Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king or queen on special days set aside for the hearing of "petitions," complaints made by someone (the petitioner) against someone else (the respondent). If the petition was heard, and not all were, the king or queen would make a decision that the parties were obliged to accept, putting an end to the complaint.

As the rule of law became more and more important in maintaining a civil society and the law itself became more and more complicated, kings and queens began to farm out the job of hearing petitions to people specially appointed to hear them; they named judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions to the judges. The English court system became more complex as time went on, and different types of courts, like the Courts of Equity and the Courts of the Exchequer, were eventually set up to deal with different kinds of problems.

The English court system was brought to British Columbia when the colonies of Vancouver Island and British Columbia were founded in the middle of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered Confederation in 1871.

The fundamental purpose of the courts today is the same as it was then, to resolve people's disputes. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of courts into a single system with the authority to decide every sort of problem.

Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on their property, to an employee's complaint of wrongful dismissal, and to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and fair solution should be, in a fair, impartial, and unbiased manner, free from any interference by the government.

The courts of British Columbia[edit]

Today we have three levels of court in British Columbia:

  1. the Provincial Court of British Columbia,
  2. the Supreme Court of British Columbia, and
  3. the Court of Appeal for British Columbia.

Each successive level of court is "superior" to the other, with the Provincial Court being the first level of court and the Court of Appeal being the last. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada.

The Provincial Court and the Supreme Court of British Columbia are where the bulk of family law court proceedings are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission (known as "leave") to hear appeals in non-criminal cases and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive. This generally discourages carrying cases beyond trial.

Making the choice of forum[edit]

There are important differences between the Provincial Court and the Supreme Court. Deciding in which court to start a proceeding is called making the choice of forum.

The Provincial Court deals with issues relating to parenting and the care of children, child support, spousal support, and protection orders. The Supreme Court has the authority to deal with all of those issues as well, but only the Supreme Court can make an order for divorce, make other orders under the Divorce Act, or make orders about the division of family property and family debts.

The rules of the Supreme Court can be very complicated and fees are charged for steps in the process, like starting a court proceeding, making an application, or hearing a trial. The rules of the Provincial Court are more straightforward and no fees are charged.

It is possible to start a proceeding in the Provincial Court to deal with things like child support, and then start a proceeding in the Supreme Court to get a divorce and deal with things like property.

The Provincial Court[edit]

The Provincial Court can be the most accessible court for people who aren't represented by a lawyer. The Provincial Court Family Rules which govern the Provincial Court's process are written in easy-to-understand language, the court doesn't charge any filing fees, and most people who use the Provincial Court don't have a lawyer. There are also many more courthouses across the province for the Provincial Court than there are for the Supreme Court.

There are four divisions of the Provincial Court. Provincial (Family) Court is the one that deals with family law problems.

Jurisdiction[edit]

The Provincial Court can only deal with claims for orders under the Family Law Act and the Interjurisdictional Support Orders Act. The Provincial Court does not have the jurisdiction to make orders for the division of family property or family debt, the management of children's property, or financial restraining orders. It cannot make orders under the Divorce Act.

The Provincial Court cannot make declarations about the parentage of a child except if necessary to deal with another claim about children, like a claim for child support or guardianship.

The Provincial Court can hear claims about these issues:

  • guardianship,
  • parental responsibilities and parenting time,
  • contact with a child,
  • child support,
  • spousal support,
  • changing and cancelling Provincial Court orders,
  • enforcing Provincial Court orders,
  • enforcing Supreme Court orders about guardianship, parental responsibilities, parenting time, and contact, and
  • relocation.

Court proceedings[edit]

The Provincial Court has special rules just for family law proceedings, the Provincial Court Family Rules. If you are involved in a proceeding in the Provincial Court, you should read and understand these rules. The rules of court say how every aspect of a Provincial Court case is run, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the Practice Directions issued by the Chief Judge, which clarify aspects of the rules of court and describe additional processes and procedures.

Procedure[edit]

The person who starts a proceeding in the Provincial Court is the applicant. The person against whom the court proceeding is brought is the respondent.

The applicant starts a proceeding by filing in court an Application to Obtain an Order (Form 1 of the Provincial Court Family Forms) and serving it on each respondent. The Application to Obtain an Order must be personally served on the respondent by an adult other than the applicant. The respondent has 30 days to answer the claim by filing a Reply (Form 3); the court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a counterclaim, the respondent's own claim against the applicant. A respondent who does not file a Reply is not entitled to notice of further hearings in the case.

Depending on which courthouse the proceeding is started at, one or both parties may have to attend the parenting after separation course, and possibly also meet with a family justice counsellor, before they can go before a judge. Family justice counsellors are government employees trained in mediation who can help with issues about the care of children, child support, and spousal support.

At the parties' first appearance before a judge, the judge may order the parties to attend a family case conference. A family case conference is a private meeting between the parties, their lawyers (if lawyers have been hired), and a judge, to talk about the legal issues and see whether any of them can be settled. In general, a judge will not make orders at a family case conference except with the parties' agreement. Family case conferences can be very helpful; there's more information about family case conferences in the chapter Resolving Problems in Court in the section on Case Conferences.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 16). It is always best to file an Affidavit (Form 17) with the Notice of Motion. An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public, or court staff member able to take oaths. There's more information about interim applications in the chapter Resolving Family Law Problems in Court in the section on Interim Applications.

Applications to change final orders are made by filing an Application to Change or Cancel an Order (Form 2) and serving it on the other parties. The other parties have 30 days to reply by filing a Reply (Form 3).

Addressing the court[edit]

Judges of the Provincial Court are addressed as "Your Honour."

Appeals[edit]

Final orders of the Provincial Court may be appealed to the Supreme Court. The appeal must be started within 40 days of the date the final order was made. The timelines for appeals are strictly applied.

According to s. 233(1) of the Family Law Act, only final orders may be appealed. In a case called Dima v. Dima, 2011 BCCA 86, the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the Judicial Review Procedure Act.

It's important to know that an order that is appealed remains in effect unless the judge who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

The Supreme Court[edit]

Unlike the Provincial Court, the Supreme Court has the authority to deal with all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to start a proceeding. As well, the Supreme Court is the only court that can grant an order for divorce.

There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting a court proceeding, are also paid in the Supreme Court; no fees are charged by the Provincial Court.

The Supreme Court is also a lot more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the rules of court used for family law matters, the Supreme Court Family Rules, are complicated and are applied strictly. The assistance of a lawyer is highly recommended.

Court jurisdiction[edit]

The Supreme Court has authority to deal with the same issues as the Provincial Court and more:

  • the Supreme Court has inherent jurisdiction, which means it can deal with every kind of legal issue,
  • the Supreme Court can deal with claims under the Divorce Act, including making divorce orders, as well as claims under the Family Law Act,
  • the Supreme Court can divide family property and family debt under the Family Law Act,
  • the Supreme Court may divide assets between people who aren't spouses under the common law, like the law of trusts, or under legislation, like the Land Title Act or the Partition of Property Act,
  • the Supreme Court may issue restraining orders freezing financial assets, and
  • the Supreme Court hears appeals from decisions of the Provincial Court.

Court proceedings[edit]

The Supreme Court has special rules just for family law proceedings, the Supreme Court Family Rules. If you are involved in a proceeding before the Supreme Court, you should try to read and understand these rules. The rules of court govern every aspect of a Supreme Court case, from starting a court proceeding to scheduling a trial. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the Practice Directions and Administrative Notices issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

Procedure[edit]

Most Supreme Court family law proceedings are started by filing in court a Notice of Family Claim (Form F3 of the Supreme Court Family Forms). The person who starts a proceeding by a Notice of Family Claim is the claimant, and the person against whom the claim is brought is the respondent. In certain unusual cases, a proceeding can also be started by filing in court a Petition (Form F73). Someone starting a proceeding with a Petition is the petitioner, and the other party is the petition respondent.

Notices of Family Claim and Petitions must be personally served on the other party by an adult other than the claimant or petitioner.

A respondent may reply to a Notice of Family Claim by filing a Response to Family Claim (Form F4). A respondent who does not file a Response to Family Claim is not entitled to notice of further hearings in the case. The respondent may also file a Counterclaim (Form F5). A counterclaim is the respondent's own claim against the applicant.

In general, before anyone can do anything else, the parties must attend a judicial case conference. A judicial case conference is a private meeting between the parties, their lawyers, and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful; cases sometimes even settle at judicial case conferences. There's more information about judicial case conferences in the chapter Resolving Family Law Problems in Court in the section on Case Conferences.

Interim applications and applications for temporary orders can be made by filing a Notice of Application (Form F31) and an Affidavit (Form F30). An affidavit is a person's written evidence, which the person swears is true before a lawyer, notary public, or court staff member able to take oaths. The person making an application is the applicant; the person against whom an application is brought is the application respondent. An application respondent may reply to a Notice of Application by filing an Application Response (Form F32) and an Affidavit within five business days after service of the Notice of Application. There's more information about interim applications in the chapter Resolving Family Law Problems in Court in the section on Interim Applications.

Applications to change final orders are made by filing a Notice of Application (Form F31) and an Affidavit (Form F30) and serving them on the other parties. The process works like the process for interim applications, except that the application respondent has 14 business days to reply.

Addressing the court[edit]

There are two kinds of judicial officials at the Supreme Court that hear applications and trials, masters and justices, both of which we'll refer to as "judges" for convenience. Masters can deal with a wide variety of applications in Supreme Court Chambers. They deal mainly with interim applications. Justices can also hear interim applications, but also conduct trials and hear applications to change final orders.

Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

Appeals[edit]

Interim orders of masters may be appealed to a justice of the Supreme Court. A party appealing the order of a master must file a Notice of Appeal in Form F98 within 14 days of the order.

Interim and final orders of justices of the Supreme Court are appealed to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals to the Court of Appeal proceed under the Court of Appeal's rules of court and court forms.

It's important to know that an order that is appealed remains in effect unless the master or justice who made the order says otherwise. Starting an appeal doesn't mean that you can ignore the order you are appealing.

The Court of Appeal[edit]

The Court of Appeal has the same sort of jurisdiction as the Supreme Court. It can deal with every kind of legal problem. However, this court does not hear trials, it only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna, and Kamloops.

Appeals are a fairly expensive process. You should only bring an appeal after you've given a lot of thought to the cost of the appeal and your chances of success; don't leap to appeal a decision just because you don't like it or are angry. Give some serious thought to the appeal first and consider asking a lawyer to review your case and the reasons for judgment from trial. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win.

Court proceedings[edit]

If you are involved in a proceeding before the Court of Appeal, you must read the Court of Appeal Act and the Court of Appeal's Rules of Court. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper to use for court documents. They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the Practice Directives issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

While it is possible to represent yourself in the Court of Appeal, the court requires strict compliance with its rules and the assistance of a lawyer is highly recommended.

Procedure[edit]

Appeals are started by filing in court a Notice of Appeal (Court of Appeal Forms - Form 7) or, depending on the circumstances, a Notice of Application for Leave to Appeal (Form 1), and must be started within 30 days of the order appealed from. The person who starts an appeal is the appellant, the other parties are respondents. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has 15 days to file a Notice of Cross Appeal (Form 8); this is only necessary if the respondent also wants to appeal the Supreme Court's order.

Interim applications, applications for temporary orders, can be made by filing a Notice of Motion (Form 6) and serving the Notice on the other parties. Applications are rarely necessary, but when they are, the rules say they must be completed within 30 minutes.

All appeals are based on the evidence before the judge who made the original decision. Before an appeal can be heard, the appellant must get transcripts of all of the oral evidence heard at trial, prepare a book with all of the documents used as evidence at trial, and prepare a book with all of the pleadings filed in the Supreme Court proceeding. (Transcripts in particular are hideously expensive to obtain.) Each side must also prepare a written argument, called a factum, as well as books containing all the statute law and case law they will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the Court of Appeal Rules very carefully!

Appeals are heard by a panel of three judges; when a legal issue is particularly important, the appeal may be heard by a panel of five judges. Applications for leave are heard before one judge. The panel reaches its decision after reading through the parties' factums, hearing the parties' oral arguments, and considering the law that applies to the issues. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to dissent.

Addressing the court[edit]

The justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship."

Appeals[edit]

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal.

Resources and links[edit]

Legislation[edit]

Resources[edit]

Links[edit]


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Bob Mostar and Mark Norton, June 8, 2017.



Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

The highest level of court in the province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts, and certain tribunals. See "appeal."

The highest level of court in Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court."

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

In law, the rules that set out the political and legal organization of a state. The power and authority of the governments, the legislative bodies, and the courts, as well as their limits, all stem from the constitution. In Canada, there are two primary constitutional documents, the Constitution Act, 1867 and the Constitution Act, 1982. The Charter of Rights and Freedoms is part of the Constitution Act, 1982.

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

A person starting a court proceeding by Petition. See "Petition."

The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."

A court form required by the Supreme Court Family Rules used to commence court proceedings that can be dealt with in the manner of an application, without the need for a protracted process of disclosure and discovery. See "action," "application," "disclosure" and "discovery."

Something which can be owned. See "chattels" and "real property."

An application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. See "appellant" and "respondent."

In law, a particular court or level of court, sometimes used in reference to the court's jurisdiction over a particular issue.

In law, (1) the whole of the conduct of a court proceeding, from beginning to end, and the steps in between, may also be used to refer to (2) a specific hearing or trial. See "action."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be entitled to share equally in any family property. See "excluded property."

A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian."

A term under the Family Law Act which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian."

A term under the Family Law Act that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by an agreement among the child's guardians with parental responsibility for making decisions about contact. See "guardian" and "parental responsibilities."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

The mandatory guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court.

A party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court applicant also means the person who starts a court proceeding. See also "court proceeding," "application respondent," and "interim application."

A legal document required by the Provincial Court Family Rules to start a court proceeding which sets out the relief sought by the applicant against the person named as respondent. See "action," "applicant," "pleadings," "relief" and "respondent."

In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

A legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim" and "Counterclaim."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

A person authorized to administer affirmations and oaths, and to execute or certify documents. All lawyers are notaries public in addition to being barristers and solicitors. See "barrister and solicitor.”

In law, an answer or rebuttal to a claim made or a defence raised by the other party to a court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."

Any order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final, order. See "application" and "interim application."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

The power of superior courts to (1) make decisions and orders in absence of specific legislative authority, (2) maintain their authority, and (3) take steps to prevent their processes from being obstructed and abused. The superior courts of British Columbia are the Supreme Court and the Court of Appeal. See "parens patriae jurisdiction."

(1) The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, or (2) the system of justice used in non-criminal cases in all provinces and territories except Quebec.

An act; a statute; a written law made by a government. See "regulations."

A legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief."

The person who starts a court proceeding seeking an order for a specific remedy or relief against another person, the respondent. See "action" and "respondent."

In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."

The person against whom a court proceeding has been started by Petition. See "Petition."

A legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings."

A legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim."

A provincially-appointed judicial official with limited jurisdiction, usually charged with making interim decisions before final judgment in a court proceeding, and certain decisions after final judgment, including the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge" and "jurisdiction."

A legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief."

A party against whom an interim application has been brought. See also "applicant" and "interim application."

A legal document required by the Supreme Court Family Rules to reply to a Notice of Application, which sets out the relief agreed to and opposed by the application respondent and the facts in support of that position. See "interim application."

A method of calculating time under which the days for a legal deadline are counted according to the days when the court is open for business, excluding weekends and holidays. See "calendar days" and "clear days."

A legal document required by the rules of court which is used to give notice of a party's intention to appeal a decision. See "appeal" and "decision."

(1) A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed, or (2) a courthouse.

A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as the judge's findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusion of law," "finding of fact" and "final judgment."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

The party who brings an appeal of a lower court's decision. See also "appeal" and "respondent."

In law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge or arbitrator following the presentation of evidence, or to a written summary of argument.

An act, legislation; a written law made by a government.

The law as established and developed by the decisions made in each court proceeding. See "common law."

A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed.

(1) Disagreement, or (2) the decision of a judge of the Court of Appeal who disagrees with the decision reached by the majority of the judges hearing the same appeal. See "appeal" and "Court of Appeal."

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