Difference between revisions of "The Court System for Family Matters"

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The Provincial Court deals with issues relating to parenting children, child support, spousal support, companion animals, and orders protecting people under the provincial ''[[Family Law Act]]''. The Supreme Court has the authority to deal with all of those issues, but can also deal with issues about parentage, dividing property and debt, and orders protecting property under the provincial act. Only the Supreme Court has the authority to make orders under the federal ''[[Divorce Act]]'', including orders for divorce. There's a chart showing which court can deal with which issue in the [[Family Law in British Columbia#The courts of British Columbia | Family Law in British Columbia]] chapter of the Getting Started part of this resource.

There are four divisions of the Provincial Court. Provincial Family Court is the one that deals with family law problems.

The Provincial Court can only deal with claims for orders under the ''[[Family Law Act]]'' and the ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. The Provincial Court does not have the jurisdiction to make orders for the division of family property (with the exception of companion animals) or family debt, the management of children's property, or orders protecting property. It cannot make any orders under the ''[[Divorce Act]]''. The Provincial Court is unable to make declarations about who the parents of a child are, unless it's necessary in order to deal with another issue, like a claim about child support or guardianship.

The Provincial Court has special rules just for family law proceedings, the [https://canlii.ca/t/b8rn Provincial Court Family Rules]. Within these rules, there are also different procedures to follow depending on the type of registry, and this means the rules can vary significantly depending where you are. It's important to know which type of registry your family law matter is filed at. The types and locations are:

* ''Early Resolution Registries'' (currently Victoria and Surrey), which follow a much different process (including what forms to use) from the other registries — luckily this is well explained on the [https://www.clicklaw.bc.ca/resource/4843 BC Ministry of Attorney General's website], and discussed generally in the [[Resolving Family Law Problems in Court]] chapter.

* ''Family Justice Registries'' (Kelowna, Nanaimo, and Vancouver (Robson Square)), which require parties to go through a family needs assessment at the very beginning.

In most Provincial Court registries you start by filing an Application About a Family Law Matter in [[PCFR Form 3 Application About a Family Law Matter|Form 3]] and then serving it on each person named as a respondent. The form must be ''personally served'' on the respondent by an adult other than the applicant — you can't do it yourself. The respondent has 30 days to answer the claim by filing a Reply to an Application About a Family Law Matter in [[PCFR Form 6 Reply to an Application About a Family Law Matter|Form 6]] at the court registry. The court clerk will send a copy of the Reply to the applicant. The Reply can also be used to make a ''counter application'', the respondent's own claim against the applicant. A respondent who does not file a Reply to an Application About a Family Law Matter is not entitled to notice of further hearings in the case!

The parties' first appearance before a judge is normally at a ''family management conference'', where the judge (or a family justice manager, but we'll just refer to the judge for simplicity's sake) will see if the parties can resolve their issues early on. A family management conference is a private meeting between the parties, their lawyers — if they have lawyers — and the judge. In general, a judge will not make orders at a family management conference except with the parties' agreement, but the judge can direct the parties to hold another family management conference, or to go to a family settlement conference, if the first meeting ends before a resolution is agreed to. All of these early conferences can be very helpful as they provide a great opportunity to talk about the legal issues and explore potential areas of compromise.  

After the family management conference, ''interim applications'' — applications for temporary orders — can be made formally, triggering another hearing.  

Court procedures are covered in the [[Resolving Family Law Problems in Court]] chapter.  

According to [https://canlii.ca/t/8q3k#section233 s. 233(1)] of the ''[[Family Law Act]]'', only final orders may be appealed. In a 2011 case called [https://canlii.ca/t/fkmwm ''Dima v Dima''], the Court of Appeal confirmed that the only way to challenge an interim order of the Provincial Court is through judicial review under the ''[https://canlii.ca/t/844v Judicial Review Procedure Act]''.

*can divide family property and family debt, and make orders respecting companion animals, under the ''Family Law Act'',

In general, before anyone can do anything else, the parties must attend a ''judicial case conference''. A judicial case conference is a private meeting between the parties, their lawyers, and a master or judge to talk about the legal issues and see whether any of them can be settled. The master or judge who hears a judicial case conference cannot make orders, except for procedural orders, without the parties' agreement. Judicial case conferences can be very helpful. Cases, even difficult ones, sometimes settle at judicial case conferences!  

''Interim applications'', applications for temporary orders, can be made by filing a ''Notice of Application'' (Form F31) and an ''Affidavit'' (Form F30) in court. An affidavit is a person's written evidence, which the person swears or affirms is true before a lawyer, notary public, or court staff member able to take oaths. The person making an application is the ''applicant''; the person against whom an application is brought is the ''application respondent''. An application respondent may reply to a Notice of Application by filing an ''Application Response'' (Form F32) and an ''Affidavit'' within five business days after service of the Notice of Application.  

Applications to ''change final orders'' are made by filing a Notice of Application (Form F31) and an ''Affidavit'' (Form F30) in court and serving them on the other parties. The process works just like the process for interim applications, except that the application respondent has 14 business days from the date of service of the application materials to reply to the application.

Justices can also hear interim applications and judicial cases conferences, but are mostly assigned to hear trials and applications to change final orders. Until a couple years ago, justices were addressed by the ancient-sounding terms "My Lord" or "My Lady," or, if you wanted, as "Your Lordship" or "Your Ladyship." As of the end of 2021, a justice of the BC Supreme Court is to be addressed as "Chief Justice", "Associate Chief Justice", "Justice", "Madam Justice", or "Mr. Justice" as the context requires. The old terms "My Lord", "My Lady", "Your Lordship", and "Your Ladyship" are to be avoided.

Interim and final orders of justices of the Supreme Court are ''appealed'' to the Court of Appeal and must be brought within 30 days of the date of the order. Appeals of interim orders are generally ''limited appeal orders'' and require the permission of the Court of Appeal before they will be heard, called ''leave''. Appeals of final orders don't need leave to proceed. Appeals to the Court of Appeal proceed under the ''[[https://canlii.ca/t/b96x Court of Appeal Act]]'' and the [https://canlii.ca/t/bgkw Court of Appeal's rules of court] and court forms.

If you are involved in a proceeding before the Court of Appeal, you must read the ''[https://canlii.ca/t/b96x Court of Appeal Act]'' and the [https://canlii.ca/t/bgkw Court of Appeal Rules]. The act and the rules govern every aspect of an appeal, from starting an appeal to the size and colour of paper you have to use for court documents. (I'm not kidding. The rules even say what kind of font and type size you have to use!) They set out important deadlines and limitations, and say what court forms must be used for which purpose. You also need to have a look at the [https://www.bccourts.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Practice Directives] issued by the Chief Justice, which clarify aspects of the rules of court and describe additional processes and procedures.

Appeals of final Supreme Court orders are discussed in the Helpful Guides & Common Questions section under [[How Do I Appeal a Final Supreme Court Decision?]]. They must be started within 30 days of the date the order was made. The person who starts an appeal is the ''appellant'', the other parties are ''respondents''. The appellant must serve the Notice of Appeal on all respondents. After being served, a respondent has to file a ''Notice of Appearance'', and may serve their own''Notice of Cross Appeal'', which is only necessary if the respondent also wants to appeal the Supreme Court's order and is asking for different orders than the appellant.

 

''Interim applications'', applications for temporary orders, can be made in the Court of Appeal subject to the rules on them being ''limited appeal orders''. Appeals of interim Supreme Court orders are discussed in the Helpful Guides & Common Questions section under [[How Do I Appeal a Interim Supreme Court Decision?]].  

Applications are rarely brought to the Court of Appeal, but when they are, the rules say the hearing of the application must be completed within 30 minutes.

#prepare an ''appeal record'' with the Notice of Appeal, and all of the pleadings filed in the Supreme Court proceeding plus the order at issue and reasons for judgment, and  

#prepare an ''appeal book with'' all of the documents used as evidence at trial.  

Each side must also prepare a written argument, called a ''factum'', as well as books containing all the statute law and case law they will be relying on in arguing the appeal. The court registry is very particular about how these materials are prepared; read the [https://canlii.ca/t/bgkw Court of Appeal Rules] very carefully!

Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. However, the Supreme Court of Canada must first grant leave for the appeal to be brought. There is no automatic right to appeal a judgment of the Court of Appeal in a family law dispute. Read the Helpful Guides & Common Questions section under [[How Do I Appeal a Court of Appeal Decision?]].

* ''[http://canlii.ca/t/b96x Court of Appeal Act]''

* [http://canlii.ca/t/bgkw Court of Appeal Rules]

{{REVIEWED | reviewer = [[Nate Russell]], 19 November 2023}}