Understanding the Legal System for Family Law Matters

This chapter looks at the three key components of the traditional 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 that resolves the dispute.

The chapter begins with a brief overview of the basic elements of our legal system and how they work together. The following sections discuss the legal system in more detail, covering the court system, the law, and the lawyer-client relationship.

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 has children, they'll have to decide where the children will mostly live, how they will make parenting decisions, 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.

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

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 that process. To resolve a legal dispute without going to court, you can negotiate a settlement or you can ask someone other than a judge to decide what should happen. In its broader sense, the legal system also refers to dispute resolution options such as negotiation, mediation, collaborative settlement processes, and arbitration. You can find out about these alternatives to going to court in the chapter Resolving Family Law Problems out of Court.

Choosing the right process

Many people see court as their first and only choice. That might be true 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 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, a kind of negotiation process in which you and your ex each have your own lawyer and your own divorce coach, and you agree to work through your problems without ever going to court. Then there's arbitration, in which you both choose the rules that will guide the process and pick the family law arbitrator you want to serve as your own personal judge.

In almost all cases, negotiation and mediation, and even arbitration, are better choices than litigation. They often 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. It is important to know the law and your rights.

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 they go to court because they see a bigger threat to their personal and financial well-being than really exists; sometimes it's 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 negotiation, collaborative processes, mediation, and arbitration. If you have a family law problem, litigation isn't your only choice. You have options.

When litigation makes sense

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

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 an uncertain 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 even though a court proceeding has started.

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

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

The law

When lawyers talk about the 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 for family law includes the Divorce Act, a law made by the federal government, and the Family Law Act, a law made by the provincial government. The government can also make regulations for a particular piece of legislation which 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 all of the legal rules and principles that haven't been 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 that 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 the Constitution of Canada, 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 this about orders for access:

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 when applying this section.

Unlike the laws made by governments, which are written down and organized, the common law is more of a series of principles and legal concepts which guide the courts in their process and in their consideration of each case. These ideas are not organized in a code or regulation. 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 what kinds of information can be admitted as evidence at trial. 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. It usually applies when we have to go to court.

The courts

The fundamental purpose of the courts is to resolve legal disputes in a fair and impartial manner. The courts deal with all manner of legal disputes, from the government's claim that someone has committed a crime, to a property owner's claim that someone has trespassed on their property, to a shareholder's grievance against a company, to an employee's claim of wrongful dismissal.

No matter what the nature of the dispute is, the judge who hears the dispute must give each party the chance to tell their story and give a complete answer. The judge must listen to each party without bias, and make a fair determination, resolving the dispute based on the facts and the laws, including the legislated laws and the common law that might apply to the dispute.

The courts of British Columbia

There are three levels of court in this province: the Provincial Court of British Columbia, the Supreme Court of British Columbia, and the Court of Appeal for British Columbia. Each level of court is superior to the one below it. A decision of the Provincial Court can be challenged before the Supreme Court, and a decision of the Supreme Court can be challenged before the Court of Appeal.

The Provincial Court

There are four divisions of the Provincial Court: Criminal and Youth Court, which mostly deals with charges under the Criminal Code; Small Claims Court, which deals with claims about contracts, services, property, and debt; Traffic and Bylaw Court, which deals with traffic tickets and provincial and municipal offences; and Family Court, which deals with certain claims under the Family Law Act.

The jurisdiction of the Provincial Court is narrower than the Supreme Court. The Provincial Court deals only with the subjects assigned to it by the provincial government. Unless the government has expressly authorized the Provincial Court to deal with an issue, the Provincial Court cannot hear the case. For example, Small Claims Court can only handle claims valued between $5001 to $35,000, and Family Court cannot deal with claims involving family property or family debt, or claims under the Divorce Act. Each branch of the Provincial Court has its own set of procedural rules and its own court forms.

The Supreme Court

The Supreme Court can deal with any claim and there is no limit to the court's authority, except for the limits set out in the court's procedural rules and in the constitution. There are three kinds of judicial official in the Supreme Court: justices, masters, and registrars. Justices and masters deal with most family law problems.

There are two sets of rules in the Supreme Court: the Supreme Court Family Rules, which apply just to family law disputes, and the Supreme Court Civil Rules, which apply to all other non-criminal matters. Each set of rules has its own court forms.

The Supreme Court is a trial court, like the Provincial Court, and an appeal court. The Supreme Court hears appeals from Provincial Court decisions, and justices of the Supreme Court hear appeals from masters' decisions.

The Court of Appeal

The Court of Appeal is the highest court in British Columbia and hears appeals from Supreme Court decisions; the Court of Appeal does not hear trials. The Court of Appeal has its own set of procedural rules and its own court forms.

The Federal Courts

The Federal Court of Canada is a second court system that is parallel to the courts of British Columbia and the other provinces and territories. The Federal Court and Federal Court of Appeal only hear certain kinds of disputes, including immigration matters and tax problems.

The federal courts also deal with Divorce Act claims in those rare cases when each spouse has started a separate court proceeding for divorce on the same day but in different provinces.

The Supreme Court of Canada

The highest level of court in the country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provinces' courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with hearing appeals.

Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to.

A handy chart

This chart shows the structure of our courts. The lowest level of court in British Columbia are the provincial courts, the highest is the Court of Appeal for British Columbia; these courts are shown on the right. The highest court in the land, common to all provinces and territories, is the Supreme Court of Canada, at the top.

Court processes

All court processes start and end more or less the same way. You must file a particular form in court and serve the filed document on the other party. After being served, the other party has a certain number of days to file a reply. If the other party replies, there is a hearing. If the other party doesn't reply and you can prove that they were served, you can ask for a judgment in default. That's about it.

In the Provincial Court, you can start a court proceeding by filing an Application to Obtain an Order. The other party has 30 days after being served to file a Reply.

In the Supreme Court, court proceedings are started by filing a Notice of Family Claim, and sometimes by filing a Petition. A person served with a Notice of Family Claim has 30 days to file a Response to Family Claim and possibly a Counterclaim, a claim against the person who started the court proceeding. A person served with a Petition has 21 days to file a Response to Petition, if served in Canada, 35 days if served in the United States of America, and 49 days if served anywhere else.

Eventually, there will be a hearing, a trial, or an application for default judgment in the Provincial Court or the Supreme Court that will result in a final order that puts an end to the dispute.

In most family law proceedings, things rarely go from starting the proceeding straight to trial. Along the way you will likely have to:

• attend a judicial case conference, if you're in the Supreme Court, or a family case conference, if you're in the Provincial Court,
• produce financial documents and other documents that are important,
• attend an examination for discovery, if you're in the Supreme Court, and
• make or reply to one or more interim applications.

An interim application is an application to the court before trial for a temporary order, called an interim order. Interim applications and these other processes are all discussed elsewhere in this resource, such as the section on Interim Applications in Family Matters in the chapter Resolving Family Law Problems in Court.

If either party is unhappy with the result of the hearing or trial and can show that the judge made a mistake, that person can appeal the final order to another court. Orders of the Provincial Court are appealed to the Supreme Court, and orders of the Supreme Court are appealed to the Court of Appeal.

You start an appeal by filing a Notice of Appeal, or, depending on the circumstances, a Notice of Application for Leave to Appeal, and serving the filed document on the other party, usually within 30 days of the date of the final order. The other party has a certain amount of time to file a Notice of Appearance in the Court of Appeal or a Notice of Interest for appeals from the Provincial Court to the Supreme Court.

Eventually, there will be a hearing that will result in a final order that puts an end to the appeal. Appeals heard by the Supreme Court can be appealed to the Court of Appeal, and appeals heard by the Court of Appeal can be heard by the Supreme Court of Canada, but only if that court gives permission.

Trial basics

A trial is the presentation and testing of a legal claim before a judge with the authority to decide the claim. A claim might be that someone has been negligent, which caused harm to the person making the claim, or it might be that one spouse should pay spousal support to the other spouse. A claim is "tested" in the sense that the judge's job is to see whether the evidence and the law support the claim.

Evidence at trial is almost always given by witnesses and through documents like bank records, income tax returns, and photographs; in rare cases, the evidence of a witness can also be given by an affidavit.

The person who started the court proceeding will go first and presents their evidence. The other party goes next and presents the evidence supporting their side of the case. When all of the evidence has been presented to the judge, each party tells the judge why the facts and the law show that the judge should decide the case in their favour.

In every case that goes to trial — and, to be clear, not every case does — the judge who hears the case must first make a decision about what the facts of the case are after they have listened to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding of fact." The judge then reviews the law and the rules and legal principles that might apply, and decides what law applies to the legal issues. This is called making a "finding of law." The judge makes a decision about the legal claim by applying the law to the facts.

Sometimes the judge is able to make a decision after hearing all the evidence and parties' arguments. Most of the time, however, the judge will need to think about the evidence and the law before they can make a decision. This is called a "reserved judgment."

Appeal basics

The decision of the judge at the trial can be challenged to a designated court of review. A decision of the Provincial Court is appealed to the Supreme Court, and a decision of the Supreme Court is appealed to the Court of Appeal. Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada, but only if the court agrees to hear the appeal.

An appeal is not a chance to have a new trial, introduce new evidence, or call additional witnesses. You don't get to appeal a decision just because you're unhappy with how things turned out. Appeals generally only concern whether the judge used the right law and applied the law correctly. This is what the Court of Appeal said about the nature of appeals in the 2011 case of Basic v. Strata Plan LMS 0304, 2011 BCCA 231:

"Consideration of this appeal must start, as all appeals do, recalling that the role of this court is not that of a trial court. Rather, our task is to determine whether the judge made an error of law, found facts based on a misapprehension of the evidence, or found facts that are not supported by evidence. Even where there is such an error of fact, we will only interfere with the order if the error of fact is material to the outcome."

An appeal court very rarely hears new evidence or makes decisions about the facts of a case; the appeal court will accept the trial judge's findings of fact. If the appeal court is satisfied that the trial judge made a mistake about the law, however, the appeal may succeed.

Appeals at the Supreme Court are heard by one judge; appeals at the Court of Appeal are heard by a panel of three or five judges. At the hearing, the person who started the appeal will go first and will explain why the trial judge made a mistake about the law. The other party goes next and explains why the trial judge appropriately considered the applicable legal principles and why the judge was right. Sometimes the court is able to make a decision after hearing from each party.

The How Do I? part of this resource has details about the procedures for making an appeal, under the heading Appealing a Decision. You may want to look at these topics:

• How Do I Appeal a Provincial Court Decision?,
• How Do I Appeal an Interim Supreme Court Decision?,
• How Do I Appeal a Supreme Court Decision?, and
• How Do I Appeal a Court of Appeal Decision?

Representing yourself

There is no rule that says that you must have a lawyer represent you in court. Although a court proceeding can be complicated to manage and the rules of court can be confusing, you have the right to represent yourself.

If you do decide to represent yourself in a court proceeding, you have a responsibility to the other parties and to the court to have a general understanding of the law that applies to your proceeding and of the procedural rules that govern common litigation processes like document disclosure and discovery and common court processes like making interim applications.

A good start would be to read through the other sections in this chapter, covering the court system, the law, and the role of lawyers, as well as the chapter on Resolving Family Law Problems in Court. You might also want to read a short note I've written for people who are representing themselves in a court proceeding, "The Rights and Responsibilities of the Self-Represented Litigant" (PDF).

To find out what to expect in the courtroom, read How Do I Conduct Myself in Court at an Application?. It's located in the How Do I? part of this resource, in the section Courtroom Protocol.

Sometimes people begin a court action with a lawyer, and then start to represent themselves. If you do this, you need to notify the other parties and the court of the change. See How Do I Tell Everyone That I'm Representing Myself?. It's located in the How Do I? part of this resource, in the section Other Litigation Issues.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Constitution Acts, 1867 to 1982

Resources

• The Rights and Responsibilities of the Self-Represented Litigant (PDF)

Links

• Courts of British Columbia website
• Supreme Court of Canada website

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Bob Mostar and Mark Norton on June 24, 2019.

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.