The Law for Family Matters

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 legislation. The other kind of law is the common law, rules and principles developed by the courts.

These pages provide an overview of legislation, the common law and the common law system of justice, and how to decide whether to begin a court proceeding under the Divorce Act or the Family Law Act, and whether to start that proceeding in the Provincial Court or in the Supreme Court.

Introduction

Under Canada's constitution, the federal and the provincial governments both have the power to make laws. Each level of government has its own particular area of jurisdiction, 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 property rights, so they can pass laws governing real estate, the sale of cars, the division of family 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 which are outside the jurisdiction of the provincial governments. This distinction is important in family actions because the laws of both the federal and provincial governments can relate to your problem, and you need to know which law governs what issue.

Legislated laws are only one source of law. Our constitution is another source of law, and another is the common law, also known as judge-made law. The fundamental principle of the common law is the idea that when a court has made a decision 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. Often this principle is an elaboration or a clarification of the general common law 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 and vice versa. Despite this separation, 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 require the government to 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 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. The common law of Canada is hundreds of years old and has its roots in England, in the curia regis established by Henry II in 1178 and the court of common pleas established by the Magna Carta in 1215, although really the oldest cases we refer to are from the 1700s. Court decisions are sometimes called "precedents" or "precedent 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. The court decided that you shouldn't be free to enter onto the property of another unless you are invited to do so, and found that the rider had committed trespass. 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 law which deals 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 law, 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 adultery or to leave him. Suing someone for enticement was a cause of action created by the courts. The Family Law Act now expressly forbids a spouse from bringing an action for enticement, thus overriding the common law rule. Other old common law causes of action abolished the Family Law Act include claims for breach of promise of marriage and loss of the benefits of marriage.

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 law in family 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 support, 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 cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.

A lot of the case law dealing with spousal support is about how this particular section of the Divorce Act has been interpreted in past cases. A lawyer making an argument about why spousal support should be awarded to his or her client would present an argument to the judge supported by case law showing how this section has been interpreted to award spousal support in the past to spouses in circumstances similar to those of his or her client.

Finding Case Law

Because the common law consists of the decisions of various judges over the past several hundred years, the common law is researched by looking at the written decisions of judges in these past cases. 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 on family law is called the Reports on Family Law, or RFL for short. 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.

It may be easier to look at books that digest or summarize the legislated law and case law on particular subjects. The best materials on family law are two books published by the Continuing Legal Education Society of British Columbia:

1. the Family Law Sourcebook for British Columbia; and,
2. the British Columbia Family Practice Manual.

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. The easiest way to find case law nowadays is on the internet, as many of these cases are available online. The British Columbia Supreme Court, the British Columbia Court of Appeal and the Supreme Court of Canada all have searchable databases of cases, and I also recommend the website of the Canadian Legal Information Institute, a project of the Federation of Law Societies of Canada, which will let you search through cases from across the country.

You can also get help doing research 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 TRU 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.