Difference between revisions of "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, which is the rules and principles developed by the courts as they decide case after case.

The common law of Canada is hundreds of years old and has its roots in England, in the ''curia regis'' established by King Henry II in 1178 and in the court of common pleas established by the Magna Carta in 1215, although really the oldest cases we are likely to refer to are from the 1800s. 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.  Court decisions are sometimes called "precedents" or "precedent decisions" because of the ''stare decisis'' principle.

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 claim created by the courts. The ''[[Family Law Act]]'' now expressly forbids a spouse from bringing a court proceeding for enticement, thus overriding the common law rule. Other old common law claims abolished the ''Family Law Act'' include claims for breach of promise of marriage and loss of the benefits of marriage.

Because the common law consists of the decisions of judges made over the past several hundred years, the common law is researched by looking at these decisions. 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 <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'', 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 for family law is called the ''Reports on Family Law'', or the RFL for short, published by Carswell. 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.  

Another way to look up case law is to read digests of the law on particular subjects. The best materials on family law are two books published by the Continuing Legal Education Society of British Columbia:the ''Family Law Sourcebook for British Columbia'', and the ''British Columbia Family Practice Manual''. These books are available in some public libraries (the [http://www.worldcat.org WorldCat] website <span class="noglossary">will</span> tell you if a library near you has copies) or at a branch of [http://www.courthouselibrary.ca Courthouse Libraries BC].

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. You can get some help 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 Thompson Rivers University <span class="noglossary">will</span> have job posting boards where you can put up a note about your needs and <span class="noglossary">contact</span> information.  

Both the Parliament of Canada and the Legislative Assembly of British Columbia have the power to make laws in their different areas of authority. This kind of law is called legislation, and each piece of legislation, called a statute, is intended to address a specific subject, like how we drive a car or how houses are built, where and when we can fish or hunt, what companies can do, and how schools, hospitals and the post office work. Legislation governs how we interact with each other and implements government policy.