The Law for Family Matters

From Clicklaw Wikibooks

When lawyers speak about the law, they are really talking about two different things. The first kind of law is the laws made by the provincial and federal governments, called legislationAn act; a statute; a written law made by a government. See "regulations.". The other kind of law is the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec., which is the rules and principles developed by the courts as they decide case after caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.".

This section provides an overview of legislated laws, the common law, and the common law system of justiceA judge of the superior courts of British Columbia, being the Supreme Court and the Court of Appeal.. It also talks about how to decide whether to begin a court proceedingA 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. under the Divorce Act or the Family Law Act.

Introduction

Under the Constitution of Canada, the federal and the provincial governments both have the power to make laws. Each level of government has its own particular area of jurisdictionWith respect to courts, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution.", meaning that a subject that the federal government can pass laws on, the provincial governments generally can't, and vice versa. For example, the provinces have jurisdiction over propertySomething which can be owned. See "chattels" and "real property." rights, so they can pass laws governing real estateIn law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death., the saleAn agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement." of cars, the division of family propertyA 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 equally entitled to share in family property. See "excluded property.", and so forth. The federal government doesn't have the ability to make laws about property rights, except in certain special circumstances. On the other hand, the federal government can pass laws dealing with the military, navigation and shipping, and divorce, things that are outside the jurisdiction of the provincial governments. This distinction is important in family law because the laws of both the federal and provincial governments can relate to a problem, and you need to know which law governs what issue.

Legislated laws are only one source of law. Our constitutionIn 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, 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''. is another source of law, and another is the common law, also known as judgeA 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.-made law. The fundamental principle of the common law is the idea that when a court has made a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; 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." on a particular issue, another court facing a similar issue — with similar parties in similar circumstances — ought to make a similar decision. Courts are said to be "bound" by the decisions of earlier courts in previous cases. As no two cases are entirely alike, each court's decision is said to stand for a principle, a statement of what the law should be in the particular circumstances of that case. Sometimes this principle is an elaboration or a clarification of the general rule on a particular subject; sometimes it is a statement about what the law ought to be.

Our constitution requires that the courts be independent from the government. Despite this separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.", the courts have a certain kind of authority over the government and the government has a certain kind of authority over the courts. For example, if the government passes a law that the court concludes is contrary to the constitution, the court can strike the legislation or make the government change it. On the other hand, the government has the authority to pass laws that change the common law rules made by the courts, although it can't change the court's decision in a particular case.

The common law

The common law of Canada is hundreds of years old and has its roots in England, in the curia regis established by King Henry II in 1178 and in the court of common pleas established by the Magna Carta in 1215, although really the oldest cases we are likely to refer to are from the 1800s. The common law is developed by the courts as they deal with each case, following a legal principle known by its Latin name, stare decisis. Under this principle, a court dealing with a particular kind of problem is required, usually, to follow the decisions of previous courts that dealt with the same sort of problem in the same sort of circumstances. Court decisions are sometimes called "precedents" or "precedentHistorical decisions of the courts; the principle that such historic decisions of the court are binding on subsequent judges hearing cases of a similar nature or of a similar circumstances. Templates or sample documents used to draft new documents. See "common law." decisions" because of the stare decisis principle.

Think of it like this. A long time ago, someone sued someone else for riding a horse onto his potato field without being invited. The court decided that you shouldn't be free to enter onto the property of another unless you were invited to do so, and found that the rider had trespassed. Someone else riding a different horse onto a different field would be found liable for trespass based on the principle established by the first court. The first case was a precedent for the court's decision in the second case.

The common law and government

While the court is more or less free to develop the common law as it sees fit, the principles of the common law can be overridden by legislation made by the government. For example, the laws that deal with the interpretation and enforcement of contracts were at one point entirely governed by the common law. The government, as it decided it needed to regulate different aspects of the law of contracts, has made legislation covering lots of different areas of contract lawThe branch of law dealing with the interpretation and enforcement of contracts. The principles of contract law are usually but not always applicable to family law agreements., including such laws as the provincial Sale of Goods Act or the federal Advance Payments for Crops Act. The new legislation overruled the old common law principles.

From a family law perspective, it used to be the case that a husband could sue someone else for "enticing" his wife to commit adulteryA married person's voluntary sexual intercourse with a person other than their spouse; playing the field; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of." or to leave him. Suing someone for enticementIn family law, the act of intentionally causing a wife to leave her husband or intentionally interfering with a married couple's consortium, formerly a common law cause of action. The ''Family Law Act'' expressly forbids legal actions based on enticement, which is too bad, really. See "cause of action," "conjugal rights," and "consortium." was a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. created by the courts. The Family Law Act now expressly forbids a spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." from bringing a court proceeding for enticement, thus overriding the common law rule. Other old common law claims abolished the Family Law Act include claims for breach of promise of marriage and loss of the benefits of marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.".

The common law and legislation

This leads to another important aspect of our legal system and the common law. The courts and the common law also play a role in interpreting laws made by the governments. Much of the case lawThe law as is established and developed by the decisions made in each court proceeding. See "common law." in family law matters doesn't deal with ancient common law principles; it deals with how the courts have interpreted the legislation bearing on family law in the past. For example, s. 15.2(4) of the Divorce Act says that in considering a claim for spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., the court must:

... take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitationLiving with another person, shacking up, playing house. Cohabitation in a "marriage-like relationship" is necessary to qualify as "spouse" under the ''Family Law Act''. See "marriage-like relationship" and "spouse."; and

(c) any orderA mandatory direction of the court, 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. See "appeal," "consent order," "decision" and "declaration.", agreement or arrangement relating to support of either spouse.

A lot of the case law that deals with spousal support is about how this particular section of the Divorce Act has been interpreted in past cases. A lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." making an argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument. about why spousal support should be awarded to her client now might make an argument to the judge supported by case law showing how this section has been interpreted to awardA mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration" and "family law arbitrator." spousal support in the past to spouses in circumstances similar to those of her client.

Finding case law

Because the common law consists of the decisions of judges made over the past several hundred years, the common law is researched by looking at these decisions. These decisions are written down and printed in books. These books, depending on the publisher, are issued on a monthly, quarterly or annual basis. (When you see a promotional photograph of a lawyer standing in front of a giant rack of musty, leather-bound books, the lawyer is standing in front of these collections of the case law.) These books, called reporters, are where the past decisions of the courts are available if you need to make an argument about how the law applies to your particular situation. The most important reporter for family law is called the Reports on Family Law, or the RFL for short, published by Carswell. You can find collections of case law reporters in the library of your local courthouse or at a law school in your neighbourhood. These libraries are open to the public, although they may have restricted business hours.

Thankfully, these days almost every important decision is published online as well. This makes research a lot easier and saves a lot of time travelling to and from libraries. CanLII, the Canadian Legal Information Institute, has a collection of most cases published since 1990 and a growing number of older cases from all parts of Canada. There are video tutorials on using CanLII effectively, courtesy of CanLII's blog and Courthouse Libraries BC's website.

The courts also post case law on their respective websites. Search the judgments of:

These websites also keep lists of recently released decisions that may be published there before making it to CanLII.

Another way to look up case law is to read digests of the law on particular subjects. The best materials on family law are two books published by the Continuing Legal Education Society of British Columbia:the Family Law Sourcebook for British Columbia, and the British Columbia Family Practice Manual. These books are available in some public libraries (the WorldCat website will tell you if a library near you has copies) or at a branch of Courthouse Libraries BC.

Legal research can be terribly complex, partly because there are so many different reporters and partly because there are so many cases. In fact, legal research is the subject of a whole course at law school. You can get some help from the librarians at your local courthouse law library or university law library, all of whom are really quite helpful. In fact, the law library at UBC has a research desk that can help with certain limited matters. You might also consider hiring a law student to plough through the law for you, and the law schools at UBC, the University of Victoria and Thompson Rivers University will have job posting boards where you can put up a note about your needs and contact information.

If all else fails, or your issue is really complex, try hiring a professional legal researcher. The Legal Research section of the Canadian Bar Association BC maintains a list of freelance research lawyers, available on the Courthouse Libraries BC website.

Legislation

Both the Parliament of Canada and the Legislative Assembly of British Columbia have the power to make laws in their different areas of authority. This kind of law is called legislation, and each piece of legislation, called a statuteAn act, legislation; a written law made by a government., is intended to address a specific subject, like how we drive a car or how houses are built, where and when we can fish or hunt, what companies can do, and how schools, hospitals and the post office work. Legislation governs how we interact with each other and implements government policy.

Government can also make regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no right to a say in how or what regulations are imposed by government. See "act." for a particular piece of statute that might contain important additional rules or say how the legislation is to be interpreted. The big difference between legislation and regulations is that legislation is publicly debated and voted on by the members of Parliament or the Legislative Assembly. Regulations are made by government without the necessity of a parliamentary vote, and often don't get much publicity as a result.

Because statutes and regulations have such a big impact on how we live our lives, they are relatively easy to find and relatively easy to understand. Unlike the common law, legislation is written down and organized. All of the current federal statutes can be found on the website of the Department of Justice. All of the current provincial statutes can be found on the BC Laws website run by the Queen's Printer.

CanLII also posts all current federal and provincial laws. It has the advantage of letting you see older versions of some laws, and you can search for cases that refer to specific statutes or regulations. You can also find the old Family Relations Act on CanLII, which you won't be able to find on the BC Laws website.

The division of powers

The governments' different areas of legislative authority are set out in ss. 91 and 92 of the Constitution Act, 1867. The federal government can only make laws about the subjects set out in s. 91 and the provincial governments can only make laws about the subjects set out in s. 92.

From a family law perspective, this means that only the federal government has the authority to make laws about marriage and divorce, while the provincial governments have the exclusive authority to make laws about marriage ceremonies, the division of property, and civil rights. As a result, the federal Divorce Act talks about divorceThe 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." and issues that are related to divorce, like the care of children, child supportMoney 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. and spousal support. The provincial Family Law Act talks about the care of children, child support and spousal support as well, but also talks about the division of family property and family debtA 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., the management of children's property, and determining the parentage of children.

The doctrine of paramountcy

Sometimes the subjects over which each level of government has authority overlap and, according to a legal principle called the doctrine of paramountcy, all laws are not created equal. Under this doctrine, federal legislation on a subject trumps any provincial legislation on the same subject. This is important because in family law both the Divorce Act and the Family Law Act deal with child support and spousal support. As a result, orders under Divorce Act will always be paramount to orders under the Family Law Act on the same subject.

Family law legislation

The two most important pieces of legislation relating to family matters are, as you will have gathered, the federal Divorce Act and the provincial Family Law Act. The most important regulation is the Child Support Guidelines, a regulation to the Divorce Act that has also been adopted for the Family Law Act.

The Divorce Act talks about:

  1. divorce,
  2. custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." of and accessUnder the ''Divorce Act'', the schedule of a parent's time with their children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." to children,
  3. child support, and
  4. spousal support.

The Family Law Act talks about:

  1. determining the parentage of children,
  2. guardianship, parental responsibilitiesA 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." and parenting timeA 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.",
  3. contactA 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 the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." with a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.",
  4. child support,
  5. spousal support,
  6. family property, family debt and excluded propertyA term under the ''Family Law Act'' referring to property acquired by a spouse prior to the commencement of the spouses' relationship and certain property acquired by a spouse during the relationship, including gifts, inheritances, court awards and insurance proceedings. A spouse is presumed to be entitled to keep their excluded property without having to share it with the other spouse. See "family property," "gift," and "inheritance.",
  7. children's property,
  8. protection orders, and
  9. financial restraining orders.

The Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved. talks about:

  1. calculating child support and determining children's special expenses,
  2. determining income, and
  3. disclosureA step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial. of financial information.

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 adoptionIn family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent.", the Land Title Act deals with real propertyA parcel of land and the buildings on that land. See "chattel," "ownership" and "possession.", the Partition of Property Act allows a co-owner of real property to force the sale of the property, and the 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 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 CourtA 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 court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." 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 forumIn law, a particular court or level of court, sometimes used in reference to the court's jurisdiction over a particular issue..

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:

  1. marriage,
  2. divorce,
  3. spousal support and child support, and
  4. custody of and access to children.

Because of the same statute, provincial governments have exclusive authority to make laws dealing with these subjects:

  1. the formalities of the marriage ceremony,
  2. spousal support and child support,
  3. guardianship, parental responsibilities and parenting time,
  4. contact with children,
  5. the division of family property and family debt,
  6. adoption,
  7. child welfare, and
  8. 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 debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., or adoption. In family law proceedings, the Provincial Court can only deal with applications involving the following subjects:

  1. guardianship, parental responsibilities, parenting time and contact under the Family Law Act,
  2. spousal support and child support under the Family Law Act,
  3. the enforcement of such orders made under the Family Law Act, and
  4. protection orders under the Family Law Act.

The Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to 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.", 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.

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 actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. 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 partyIn 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." 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 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 applications under the Divorce Act. Unmarried spouses and other unmarried people may make applications for reliefIn law, an order sought by a party to a court proceeding or application, usually as described in their pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings." under the Family Law Act alone. Also, if your proceedingIn law, 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 a specific hearing or trial. See "action." 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:

Family Law Act Divorce Act
Divorce Yes
Care of children Guardianship and
parental responsibiities
Custody
Time with children Parenting time or
contact
Access
Child support Yes Yes
Children's property Yes
Spousal support Yes Yes
Family property and
family debt
Yes
Protection orders Yes
Financial restraining orders 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, 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 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 other party submit to an examination for discoveryThe cross-examination of a party under oath or affirmation about the matters at issue in a court proceeding conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, in certain circumstances, be used at trial. See "discovery.", or make a company or third partyA person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "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.

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 trialThe testing of the claims at issue 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 determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.".

This chart shows which level of court can deal with which issue:

Provincial Court Supreme Court
Divorce Act Yes
Family Law Act Yes Yes
Divorce Yes
Care of children Yes Yes
Time with children Yes Yes
Child support Yes Yes
Children's property Yes
Spousal support Yes Yes
Family property and
family debt
Yes
Protection orders Yes Yes
Financial restraining orders 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.

Resources and links

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