Difference between revisions of "Understanding the Legal System for Family Law Matters"

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. Your options include negotiation, mediation, collaborative settlement processes, and arbitration. You can find out about these alternatives to going to court in the chapter on [[Resolving Family Law Problems out of Court]].

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.

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 you and your ex each has 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.

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.

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

#you need to demonstrate that you're serious about moving things forward toward a resolution.

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

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 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.  

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:

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

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 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.

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 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.

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.

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

This is a chart showing 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.

[[File:CourtChart.GIF|center|The court system in British Columbia]]

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 he or she was served, you can ask for a judgment in default. That's about it.

#make or reply to one or more interim applications.

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.

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.

A trial is the testing of a legal claim before a judge with the authority to decide the issue. 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.

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

The decision of the judge at the trial can be challenged to a higher court. 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.

<blockquote>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.</blockquote>

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 <span class="noglossary">mistake</span> 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 a decision.

There is no rule that says that you have to 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.

* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>

==Page Resources and Links==

===Legislation===

===Links===

{{JP Boyd on Family Law Navbox|type=chapters}}