7,406
edits
Difference between revisions of "The Law for Family Matters"
From Clicklaw Wikibooks
From staging 2024
Nate Russell (talk | contribs) |
Nate Russell (talk | contribs) (From staging 2024) |
||
| Line 52: | Line 52: | ||
Because the common law consists of the decisions of judges made over the past several hundred years, the common law is researched by looking through these decisions. These decisions used to be only available in books. Those books, depending on the publisher, were issued on a monthly, quarterly, or annual basis. (When you see a promotional photograph of a lawyer <span class="noglossary">standing</span> in front of a giant rack of musty, leather-bound books, the lawyer is <span class="noglossary">standing</span> in front of these collections of the case law.) These books, called ''reporters'', were where the past decisions of the courts could be found if you needed to make an argument about how the law applied to your particular situation. You can still find collections of 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. | Because the common law consists of the decisions of judges made over the past several hundred years, the common law is researched by looking through these decisions. These decisions used to be only available in books. Those books, depending on the publisher, were issued on a monthly, quarterly, or annual basis. (When you see a promotional photograph of a lawyer <span class="noglossary">standing</span> in front of a giant rack of musty, leather-bound books, the lawyer is <span class="noglossary">standing</span> in front of these collections of the case law.) These books, called ''reporters'', were where the past decisions of the courts could be found if you needed to make an argument about how the law applied to your particular situation. You can still find collections of 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 the library. [ | 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 the library. [https://canlii.org 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. CanLII is, without a doubt, the best place to find case law. | ||
The courts also post case law on their respective websites. You can search the judgments of: | The courts also post case law on their respective websites. You can search the judgments of: | ||
*the [ | *the [https://www.provincialcourt.bc.ca/judgments-decisions Provincial Court of British Columbia], | ||
*the [https://www.bccourts.ca/search_judgments.aspx Supreme Court of British Columbia], | *the [https://www.bccourts.ca/search_judgments.aspx Supreme Court of British Columbia], | ||
*the [https://www.bccourts.ca/search_judgments.aspx Court of Appeal for British Columbia], and | *the [https://www.bccourts.ca/search_judgments.aspx Court of Appeal for British Columbia], and | ||
*the [ | *the [https://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Supreme Court of Canada]. | ||
These websites also keep lists of recently released decisions that may be published there before making it to CanLII. | These websites also keep lists of recently released decisions that may be published there before making it to CanLII. | ||
| Line 121: | Line 121: | ||
*spousal support, | *spousal support, | ||
*family property, family debt, and excluded property, | *family property, family debt, and excluded property, | ||
*companion animals, | |||
*managing children's property, | *managing children's property, | ||
*orders protecting people, and | *orders protecting people, and | ||
| Line 131: | Line 132: | ||
*disclosure of financial information. | *disclosure 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 ''[ | 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 ''[https://canlii.ca/t/8481 Name Act]'' allows a spouse to change their name following a divorce, the ''[https://canlii.ca/t/84g5 Adoption Act]'' deals with adoption, the ''[http://canlii.ca/t/8456 Land Title Act]'' deals with real property, the ''[https://canlii.ca/t/848q Partition of Property Act]'' allows a co-owner of real property to force the sale of the property, and the ''[https://canlii.ca/t/84ld 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== | ==Choosing the law and the court== | ||
| Line 160: | Line 161: | ||
*guardianship and parenting children under the ''Family Law Act'', | *guardianship and parenting children under the ''Family Law Act'', | ||
*moving away, with or without children, under the ''Family Law Act'', | *moving away, with or without children, under the ''Family Law Act'', | ||
*spousal support and child support under the ''Family Law Act'', and | *spousal support and child support under the ''Family Law Act'', | ||
*companion animals, and | |||
*orders for the protection of people under the ''Family Law Act''. | *orders for the protection of people under the ''Family Law Act''. | ||
| Line 172: | Line 174: | ||
*spousal support and child support under both the ''Divorce Act'' and the ''Family Law Act'', | *spousal support and child support under both the ''Divorce Act'' and the ''Family Law Act'', | ||
*dividing property and debt under the ''Family Law Act'', | *dividing property and debt under the ''Family Law Act'', | ||
*companion animals under the ''Family Law Act'', | |||
*orders for the protection of people under the ''Family Law Act'', and | *orders for the protection of people under the ''Family Law Act'', and | ||
*orders for the protection of property under the ''Family Law Act''. | *orders for the protection of property under the ''Family Law Act''. | ||
As you can see, if you wish to make claims about divorce, determining the parentage of a child, managing children's property, dividing property and debt, or protecting property, you must make your application to the Supreme Court. Otherwise, you can make your claim in either court. | As you can see, if you wish to make claims about divorce, determining the parentage of a child, managing children's property, dividing property (other than a companion animal) and debt, or protecting 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 court proceedings happening at the same time, involving the same people and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, a claim 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. That's not so bad, because each court is dealing with different legal issues. Where it gets hairy is when someone starts a claim in the Provincial Court — usually because that court doesn't charge filing fees and is a little bit easier to navigate — and the other side starts a claim in the Supreme Court on the same legal issues plus a few more that the Provincial Court can't deal with, like the division of property. In cases like that, either party can make an application that the proceedings in the Provincial Court be ''joined'' with those in the Supreme Court so that they are heard at the same time before the same court. | Making matters worse, there can be court proceedings happening at the same time, involving the same people and possibly the same problems, before both the Provincial Court and the Supreme Court. For example, a claim 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. That's not so bad, because each court is dealing with different legal issues. Where it gets hairy is when someone starts a claim in the Provincial Court — usually because that court doesn't charge filing fees and is a little bit easier to navigate — and the other side starts a claim in the Supreme Court on the same legal issues plus a few more that the Provincial Court can't deal with, like the division of property. In cases like that, either party can make an application that the proceedings in the Provincial Court be ''joined'' with those in the Supreme Court so that they are heard at the same time before the same court. | ||
| Line 213: | Line 216: | ||
''Forum'' means place. In family law matters, the choice of forum is about choosing which of the two trial courts to make a claim in, the ''place'' of your trial. 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 almost every legal issue. 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. | ''Forum'' means place. In family law matters, the choice of forum is about choosing which of the two trial courts to make a claim in, the ''place'' of your trial. 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 almost every legal issue. 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. | ||
Other things to think about when making the choice of forum are complexity and cost. The process of each court is guided by each court's set of rules. The [ | Other things to think about when making the choice of forum are complexity and cost. The process of each court is guided by each court's set of rules. The [https://canlii.ca/t/8mcr Supreme Court Family Rules] offer a much wider variety of tools than the [https://canlii.ca/t/b8rn Provincial Court Family Rules], but the rules of the Supreme Court are much, much more complicated than the rules of the Provincial Court. The Provincial Court charges no filing fees and has a relatively streamlined procedure. The Supreme Court charges filing fees, and the extra tools available under the Supreme Court Family Rules are helpful but add to the cost of bringing a proceeding to trial. | ||
This chart shows which level of court can deal with which issue: | This chart shows which level of court can deal with which issue: | ||
| Line 238: | Line 241: | ||
|align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes | |align="center"|'''Spousal support||align="center"|Yes||align="center"|Yes | ||
|- | |- | ||
|align="center"|'''Property and debt'''|| ||align="center"|Yes | |align="center"|'''Property and debt'''||align="center"|Pets only||align="center"|Yes | ||
|- | |- | ||
|align="center"|'''Orders protecting people'''||align="center"|Yes||align="center"|Yes | |align="center"|'''Orders protecting people'''||align="center"|Yes||align="center"|Yes | ||
| Line 268: | Line 271: | ||
===Links=== | ===Links=== | ||
* [ | * [https://www.canlii.org CanLII] | ||
* [ | * [https://www.provincialcourt.bc.ca/judgments-decisions Decisions of the Provincial Court of British Columbia] | ||
* [https://www.bccourts.ca/search_judgments.aspx Decisions of the Supreme Court of British Columbia] | * [https://www.bccourts.ca/search_judgments.aspx Decisions of the Supreme Court of British Columbia] | ||
* [https://www.bccourts.ca/search_judgments.aspx Decisions of the Court of Appeal for British Columbia] | * [https://www.bccourts.ca/search_judgments.aspx Decisions of the Court of Appeal for British Columbia] | ||
* [ | * [https://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do Decisions of the Supreme Court of Canada] | ||
* [ | * [https://www.worldcat.org WorldCat] | ||
* [ | * [https://blog.canlii.org/2012/07/06/one-minute-legal-research-a-student-made-video-series/ CanLII blog] (video tutorials on using CanLII) | ||
* [https://www.provincialcourt.bc.ca/types-of-cases/family-matters "Family Cases"] from the Provincial Court of BC | * [https://www.provincialcourt.bc.ca/types-of-cases/family-matters "Family Cases"] from the Provincial Court of BC | ||
* [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/do-you-need-go-provincial-family-court-or-supreme-court "Do you need to go to Provincial (Family) Court or Supreme Court?"] from Legal Aid BC | * [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/do-you-need-go-provincial-family-court-or-supreme-court "Do you need to go to Provincial (Family) Court or Supreme Court?"] from Legal Aid BC | ||
| Line 282: | Line 285: | ||
{{REVIEWED | reviewer = [[JP Boyd]], 19 | {{REVIEWED | reviewer = [[JP Boyd]], 19 November 2023}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
