Understanding the Legal System for Family Law Matters

There are three key components to the legal system: the law, the courts, and the people involved in the court process. In a legal dispute, the parties present their competing claims to the court, and the judge who hears the case applies the law to the facts and makes a decision which resolves the dispute.

These pages provide a brief introduction and an overview of the basic elements of the legal system. The pages that follow discuss our legal system in much further detail and provide useful sample documents and court forms that you can use to help draft your own materials.

Introduction

When some couples separate, they just separate and it's over and done with. For other couples, separation raises a bunch of practical and legal problems. If a couple have children, they'll have to decide where the children will mostly live, how decisions will be made about parenting issues will be made, how much time each parent will have with the children, and how much child support should be paid. If one person is financially dependent on the other, they may have to decide whether spousal support should be paid. If the couple has property, they'll have to decide who should keep what.

First, then, you need to identify the legal problems you have to deal with.

When a couple have problems like these, they also have to decide how they'll solve those problems. In other words, they need to pick the legal process they'll use to figure everything out and get to a resolution. Some couples go to a trusted friend, family member or community leader for help. Others go to court. Others use a mediator to help them find a solution. Others just talk it out.

Second, you need to select the process you'll use to solve the legal problems.

In its narrowest sense, the legal system refers to the parties, the judges, the court staff and the lawyers that make up the litigation process, and of course the laws and rules that guide the litigation process. Litigation is only one of the choices you have in finding a solution to your family law problems. Other options include negotiation, mediation, collaborative processes and arbitration.

Chosing the Right Process

Many people see court as their first and only choice. That might be true if your landlord is trying to evict you unfairly, if your business partner has broken a deal, if you've had a car accident and ICBC won't pay, or if you're suing some huge corporation. It is certainly not true for family law problems.

Deciding Not to Litigate

You could, for example, sit down over a cup of coffee and simply talk about the problem. You could hire a family law mediator to mediate your problems, work through your emotions and come up with a solution that you're both as happy with as possible. You could hire a lawyer to negotiate a solution for you, or you could let the lawyer assist you as you work through the mediation process. There's also collaborative law, in which everybody has their own lawyer and their own divorce coach, and they agree to work through their problems without ever going to court. There's also arbitration, in which the parties hire a family law arbitrator to serve their own personal judge and chose the rules that will guide the process.

In almost all cases, negotiation and mediation, and even arbitration, are better choices than litigation. They all cost a lot less than litigation, they offer you the best chance of getting to a solution that you're both happy with, and they give you the best chance of maintaining a civil relationship with your ex after the dust has settled. Whatever you do, it's very important that you get legal advice from a lawyer in your area since most laws change from province to province and from state to state.

Despite the obvious benefits of avoiding litigation, most people still go to court when they have the problem. Why? Usually because they are angry, sometimes because they want revenge. Sometimes because they see a bigger threat to their personal and financial well-being than really exists; sometimes because they can't trust their ex any more and simply don't know what to do next. Sometimes, it's because they are emotionally immature and can't get through their anger to return to a more rational, common sense point of view.

Today, the legal system isn't just about judges and courts, lawyers and the law. It also includes mediation, arbitration, negotiation and collaborative law. If you have a family law problem, litigation is not your only choice. You have options.

When Litigation Makes Sense

Sometimes litigation is your smartest choice; sometimes there's just no other option except litigation.

You'll need to start a court proceeding if you've tried to resolve things out of court but can't reach a final agreement. For some people, prolonging the conflict is a way of continuing a relationship past separation; others are afraid to commit to a final agreement for fear of the future. Still others refuse to accept anything less than their best-case outcome and don't see the financial and emotional benefits of settlement.

If your ex has started a court proceeding, on the other hand, you'll have to participate in the litigation or you risk the court making an order without hearing from you. However, just because a court proceeding has started, you're not necessarily headed to a trial. Most family law proceedings in the Supreme Court resolve without a trial; many Provincial Court proceedings also settle short of trial. Settlement can still be reached through negotiation, mediation or collaborative processes.

Even if litigation isn't underway or may not be required to resolve your dispute, you may want to start a court proceeding if:

1. there's a history of violence or abuse in your relationship;
2. you or your children need to be protected from your ex;
3. your ex is threatening to something drastic like take the children, hide property or rack up debt;
4. your ex is refusing to disclose financial or other information;
5. your ex is refusing to provide support and you need financial help; or,
6. you need to demonstrate that you're serious about moving things forward toward a resolution.

The Law

When lawyers talk about they law they're talking about two kinds of law, laws made by the government and the common law.

Laws made by the government are called legislation. Important legislation in family law includes the Divorce Act, made by the federal government, and the Family Law Act, made by the provincial government. The government can also make regulations for a particular piece of legislation that might contain important additional rules or say how the legislation is to be interpreted. The most important regulation in family law is the Child Support Guidelines, a regulation to the Divorce Act.

The common law is the legal rules and principles that aren't created by the government. The common law has been developed by the court since the modern court system was established several hundreds of years ago.

Legislated Laws

Legislated laws are the rules which govern our day-to-day lives. The federal and provincial governments both have the authority to make legislation, like the provincial Motor Vehicle Act, which says how fast you can go and that you need to have a licence and insurance to drive a car, or the federal Criminal Code, which says that it's an offence to stalk someone, to steal or to shout "fire" in a crowded theatre.

Because of our constitution, each level of government can only make legislation on certain subjects, and normally the sorts of things one level of government can make rules about can't be regulated by the other level of government. For example, only the federal government can make laws about divorce, and only the provincial government can make laws about property.

The Common Law

One of the court's more important jobs is to interpret and apply legislated laws. For example, the Divorce Act says that:

In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.

The court has had to decide what "as is consistent with the best interests of the child" means in applying this section.

Unlike the governments' laws, which are written down, organized and codified, the common law is more of a series of principles and legal concepts which guide the courts in their process and their consideration of each case. These ideas are not organized and codified, they are found in "case law", judges' written explanations of why they have decided a particular case a particular way.

The common law provides direction and guidance on a wide variety of issues, such as how to understand legislation, the proper interpretation of contracts, the test to be applied to determine whether someone has been negligent and the rules of evidence. However, unlike legislated laws, the common law doesn't usually apply to our day-to-day lives in the sense of imposing rules that say how fast we can drive in a school zone or whether punching someone is a criminal offence.