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This chapter provides a brief introduction and an overview of the basic elements of the legal system. The chapters that follow discuss our legal system in much further detail and provide useful sample documents and court forms that you can use to help draft your own materials. You may want to read the chapter Family Law 101 for a more basic introduction to family law and the court system in British Columbia before getting started on this section. Introduction When a couple separates, they may have to deal with one or more problems that might crop up as a result of the end of their relationship. If a couple has children, they'll have to decide where the children will most live, how decisions will be made about parenting issues, and how much time each parent will have with the children. 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. Where a couple has these sorts of problems, they also have to decide how they will deal with them. When you know you have to find a solution to these problems, the first question you have to ask yourself is this: what process will you use to find the solution? In its narrowest sense, the "legal system" refers to the litigants, the judges, the courts, the lawyers and the court officials that make up the litigation process, and of course the laws and rules that guide that process. The legal system is only one of the choices you have in finding a solution to your family law problems. In today's culture, however, people often see litigation 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 and faceless corporate monolith like Walmart. It is certainly not true in family matters. 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, work through your emotions and come up with a solution that you're both as happy with as possible. You could hire a lawyer and let the lawyer help negotiate a solution with you, or let the lawyer assist you as you work through the mediation process. There's also collaborative law, in which everybody has their own lawyer, their own divorce coach (a counselling psychologist), and they agree to work through their problems without ever going to court, or arbitration, in which the parties hire their own personal judge and select the rules that will guide the process. In almost all cases, negotiation and mediation are better choices than litigation. They cost a lot less than litigation, offer you the best chance of getting to a solution that you're both happy with, and give you the best chance of maintaining a civil relationship with your former spouse or partner after everything's over and the dust has settled. Despite the obvious benefits of avoiding the legal system, most people still go to court when they have the problem. Why? Usually because they are angry, sometimes because they want vengeance. Sometimes because they see a bigger threat to their personal and financial well-being than really exists; sometimes because they have lost all faith in their former spouses or partners and simply don't know what they'll do next. Sometimes, it's because they are emotionally immature and can't see through their anger to get back to a more objective, common sense point of view. Today, the legal system isn't just about the courts, judges, lawyers and the law. It also includes mediation, arbitration, negotiation and collaborative law. If you have a family law problem, litigation is not your only choice. You have options. This section is devoted to litigation, the traditional legal system, but also has important information about the lawyer-client relationship and how to find, hire and fire a lawyer. The next section, Alternatives to Court, talks about the options to litigation. Read through this section, but make sure you are also aware of the ways that you can find solutions to your problem in the modern legal system and avoid litigation altogether. Back to the top of this chapter. Elements of the Traditional Legal System Our legal system is based on a complex relationship between the courts and the governments. The federal and provincial governments pass laws which are interpreted and enforced by the courts. This kind of law is also called "legislation." The courts interpret and enforce the governments' legislation based on the rules of the "common law" and the rules set out in our constitution. The common law is the rules set out in past court decisions, decisions made since the formal court system was established hundreds of years ago. The relationship between the courts and the governments is dynamic, in the sense that each has a certain sort of authority over the other. If the court decides that a piece of legislation is contrary to the constitution, for example, the court can change the law or strike the law down. The government, on the other hand, can pass laws regulating different aspects of the common law, to change the effect of a court's decision. The rest of this introductory chapter, and the following chapters, The Legal System > The Courts and The Legal System > The Law, are intended to help untangle and explain these interwoven relationships, and explain how they apply to people in a legal dispute. The Law There are two types of law: legislated laws, which include acts, rules and regulations that have been created by the government; and, the common law, which consists of rules and principles that have been created by judges over hundreds of years. Legislated Laws The federal and provincial governments both have the authority to pass laws, rules which govern our day-to-day lives, like the provincial Motor Vehicle Act or the federal Criminal Code. Because of our Constitution, each level of government can only pass laws on certain subjects, and ordinarily the sorts of things one level of government can regulate can't be regulated by the other level of government. One of the court's more important jobs is to interpret and apply these laws. The Common Law Unlike the governments' laws, which are written down and codified, the common law is more of a series of principles and legal concepts which guide the courts in their process and as they consider each case. These ideas are not codified, they are found in the case law, that is, in the written reasons of each judge in each case since our court system was established. The common law provides guidance to the court on a wide number of issues, such as the proper interpretation of contracts, the test to be applied to determine whether someone has been negligent, and the rules on the admissibility of evidence. Unlike the legislated laws, the common law doesn't apply to our day-to-day lives in the sense of imposing rules on us. The Courts The fundamental purpose of the courts is to determine disputes between different people, and to do so in a fair and impartial manner. The courts deal with all manner of 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 shareholder greivances against companies, to an employee's claim of wrongful dismissal. No matter what the nature of the dispute, the court must give each party the chance to tell their story and give full answer to someone's claim, listen to each party without bias, and make a fair determination of the dispute based on the facts and the laws which apply. The Courts of British Columbia 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, that is, a decision of the Provincial Court can be disputed, or "appealed," to the Supreme Court, and a decision of the Supreme Court can be appealed to the Court of Appeal. The jurisdiction of the Provincial Court is fairly narrow. It can only deal with the subjects that the provincial government says it can. Unless the government has expressly authorized the Provincial Court to deal with an issue, the Provincial Court cannot hear the case. For example, the Provincial (Small Claims) Court, can only handle claims up to $25,000.00, and the Provincial (Family) Court cannot consider questions involving family assets or divorce. The Supreme Court and the Court of Appeal are, together, our "superior courts." Both can deal with any question brought before them, and there are no limits to the authority of these courts, except the limits set out in the court's rules and in our constitution. The Federal Courts A second court system exists, parallel to the provincial courts and common to the whole country, called the Federal Court of Canada. The Federal Court and Federal Court of Appeal only hear certain kinds of actions, such as tax disputes and immigration matters. In certain rare cases, the federal courts also deal with divorce cases. The most common reason why the Federal Court will deal with a divorce claim is when each spouse starts a separate action for divorce on the same day but in different provinces. The Supreme Court of Canada The highest level of court in our country is the Supreme Court of Canada. This court has three main functions: to hear appeals from decisions of the provincial courts of appeal; to hear appeals from decisions of the Federal Court of Appeal; and, to answer questions of law for the federal government. Most of the court's time is occupied with hearing appeals. Decisions of the Supreme Court of Canada are final and absolute, and there is no higher court or authority to appeal to. A Handy Chart 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.
Trial Basics 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 parent should have custody of the children over the other parent. A claim is "tested" in the sense that the judge's job is to see whether the evidence and the law support the claim. In every case that goes to trial, and not every case does, the judge who hears the case makes a decision about the what the facts of the case are after listening to the evidence, since people hardly ever agree on the facts of the case. This is called a "finding of fact." The judge then reviews the rules set out in the legislation and the common law and decides what the applicable law is, called making a "finding of law." The judge makes a decision about what the result should be in a case by applying the law to the facts. Trials can be very expensive if you have to hire a lawyer to represent you. The chapter The Legal System > Starting an Action features a handy legal fees guesstimator that can help you assess the potential cost of going to trial. Appeal Basics The decision of the judge at the trial can be disputed, or "appealed." A decision of the Provincial Court of British Columbia is appealed to the the Supreme Court of British Columbia, and a decision of the Supreme Court is appealed to the Court of Appeal for British Columbia. Decisions of the Court of Appeal can be appealed to the Supreme Court of Canada. It is not enough to be unhappy with the trial judge's decision to appeal his or her decision. Appeals generally only concern whether the judge applied the correct law and whether the judge applied the law correctly. The appeal court does not hear new evidence or make decisions about the facts of a case; the appeal court will accept the trial judge's findings of fact. If the appeal court is satisfied that the trial made a mistake in his or her reasoning, called an "error of law," the appeal may succeed. In other words, the appeal courts decide questions of law, while the lower courts decide both questions of law as well as questions of fact. At an appeal hearing, the person challenging the trial decision (the Appellant) presents a legal argument to the court, which sits as a panel of three or more judges. The person answering the appeal (the Respondent) presents his or her own legal argument, and the the Appellant will have a chance to answer the respondent's argument. The panel will then consider the law and the arguments and decide who is right. The Parties The "parties" are the people personally involved in a law suit. There are usually only two types of litigant: Plaintiffs, the person or persons who have brought a claim to court; and, Defendants, the person or persons against whom the Plaintiff's claim is made. In the Provincial Court, the Plaintiff is called the Applicant or Claimant and the Defendant is called the Respondent. There are two other kinds of litigant, "third parties" and "intervenors." Third parties are people whose interests or rights may be affected by the Plaintiff's claim, or people who the Defendant thinks share some responsibility for the Plaintiff's claim. Third parties are rare in family law, and generally only become involved with respect to claims about property. Intervenors are people, usually social policy advocates, who ask to address the court during an appeal because they believe that a point in the appeal is particularly important, either to themselves or to people in general. Intervenors usually become involved in family law disputes where they think some moral or religious issue is at stake, such as was the case when same-sex marriage was an issue. Lawyers In the context of litigation, a lawyer represents a party to an action and acts on that party's behalf. The lawyer's job is to advise his or her client about the law and the options available to the client. The lawyer is also responsible for advancing his or her client's interests through the court system using different mechanisms the rules of court and the law provide for establishing an entitlement or defending a claim to an entitlement. When a party hires a lawyer, the party is paying for the special skills, expertise, knowledge and training that the lawyer brings to the table. The lawyer is someone knowledgeable about courtroom procedures and the law, who is experienced in the art of presenting the client's best case to the court. The lawyer cannot, however, guarantee success. No one can. Hiring a lawyer improves the client's chances of success but does not guarantee success. More information about the role of lawyers, the help they can provide, and how to find, hire and fire a lawyer is available in the chapter The Legal System > Lawyers & Litigants. Back to the top of this chapter. Site Navigation
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