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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
There are three key components | There are 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. | ||
These pages provide a <span class="noglossary">brief</span> introduction | These pages provide a <span class="noglossary">brief</span> introduction to the basic elements of our legal system and how they work together. The pages that follow discuss the legal system in more detail. | ||
==Introduction== | ==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 | 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 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. | ||
' | 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 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. | ||
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. Litigation is only one of the choices you have in finding a solution to your family law problems. Other options include negotiation, mediation, collaborative settlement processes and arbitration. | |||
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 | |||
==Choosing the Right Process== | ==Choosing the Right Process== | ||
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===Deciding Not to Litigate=== | ===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 | 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 mediation in which everybody has their own lawyer and their own divorce coach, and agree to work through their problems without ever going to court. Then there's arbitration, in which the parties choose the rules that will guide the process and pick the family law arbitrator they want to serve their own personal judge. | ||
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 | 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. | ||
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 <span class="noglossary">trust</span> 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. | 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 <span class="noglossary">trust</span> 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 | 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 isn't your only choice. You have options. | ||
===When Litigation Makes Sense=== | ===When Litigation Makes Sense=== | ||
Sometimes litigation is your smartest choice; sometimes there's just no other option | 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 | 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 <span class="noglossary">hearing</span> 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 | 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 <span class="noglossary">hearing</span> 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: | Even if litigation isn't underway or may not be required to resolve your dispute, you may want to start a court proceeding if: | ||
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==The Law== | ==The Law== | ||
When lawyers talk about | 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 | 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 the legal rules and principles that | 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=== | ||
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===The Common Law=== | ===The Common Law=== | ||
One of the court's more important jobs is to interpret and apply legislated laws. For example, the ''Divorce Act'' says | 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: | ||
<blockquote>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.</blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
The court has had to decide what "as is consistent with the best interests of the child" means | The court has had to decide what "as is consistent with the best interests of the child" means when applying this section. | ||
Unlike the governments' laws, which are written down | Unlike the governments' laws, 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 | 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 Courts== | ||
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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. | 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, listen to each party without bias, and make a fair determination resolving the dispute based on the facts and the laws which apply to the dispute. | 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, 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, which might apply to the dispute. | ||
===The Courts of British Columbia=== | ===The Courts of British Columbia=== | ||
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Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to. | Decisions of the Supreme Court of Canada are final and absolute. There is no higher court or other authority to appeal to. | ||
==Court | ==Court Processes== | ||
All court processes start and end more or less the same way. You must file a particular form in court and serve 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 he or she was served, you can ask for a judgment in default. That's about it. | All court processes start and end more or less the same way. You must file a particular form in court and serve 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 he or she was served, you can ask for a judgment in default. That's about it. | ||
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#produce financial documents and other documents that are important; | #produce financial documents and other documents that are important; | ||
#attend an examination for discovery, if you're in the Supreme Court; and, | #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 for a temporary order, called an interim order, before trial. Interim applications and these other processes are all | An ''interim application'' is an application to the court for a temporary order, called an interim order, before trial. Interim applications and these other processes are all discussed elsewhere in this website. | ||
If either party is unhappy with the result of the hearing or trial and can show that the judge made a <span class="noglossary">mistake</span>, 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. | If either party is unhappy with the result of the hearing or trial and can show that the judge made a <span class="noglossary">mistake</span>, 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. |