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This chapter provides an overview of the nature and jurisdiction of the Provincial Court, the Supreme Court and the Court of Appeal of this province. I. Introduction Our court system has its origins hundreds of years ago in England. In the middle ages, people would come to the king on special days set aside for the hearing of "petitions," complaints made by someone (the Petitioner) against someone else (the Respondent). If the petition was heard, the king would decide and impose a judgment on the parties, putting an end to the dispute. As the rule of law became more and more important in maintaining civil society, rulers began to farm out the job of hearing petitions to people specially appointed to hear them called judges. Eventually the monarchy got out of the business altogether, and left the hearing of petitions only to the judges. The English court system became more complex as time went on, and different types of courts (like the Courts of Chancery and the Courts of the Exchequer) were eventually set up to deal with different kinds of complaints. The English court system was imported to British Columbia when the colonies of Vancouver Island and New Westminster were founded in the early part of the nineteenth century. Our local court system was brought into the Canadian system when British Columbia entered the confederation in 1871. The fundamental purpose of the court system today is the same as it was then, to decide what should happen in disputes between different people. We still use a lot of the same terms that were used hundreds of years ago — there's even a court form called a Petition — although we've merged the different types of court into a single body with the authority to decide every sort of problem. Our courts deal with all manner of disputes, from the government's complaint that someone has committed a crime, to a property owner's complaint that someone has trespassed on his or her property, to an employee's complaint of wrongful dismissal, to a driver's complaint that someone else was responsible for an accident and the damage the accident caused. The job of the judge is to hear each case and decide what an appropriate and just solution should be, in an impartial and unbiased manner, free from any interference by the government. Today we have three levels of court in British Columbia:
Each level of court is "superior" to the other, with the Provincial Courts being the lowest level of court and the Court of Appeal being the highest. Above our Court of Appeal is the Supreme Court of Canada, which deals with cases from all of the courts of appeal across Canada. The Provincial (Family) Court and the Supreme Court of British Columbia are where the bulk of family law actions are heard. The Court of Appeal and the Supreme Court of Canada only hear appeals of decisions made by the lower courts. As a result, only a few family law cases are brought to the Court of Appeal. Fewer still are brought to the Supreme Court of Canada, partly because that court must give permission to hear a civil case and partly because it can cost a great deal of money to take a case that far. Appeals generally tend to be complicated and fairly expensive to conduct, which also discourages argument beyond the trial decision. There are important differences between the the Provincial (Family) Court and the Supreme Court. The Provincial (Family) Court can only deal with issues relating to children and spousal support and some types of restraining orders. The Supreme Court has the jurisdiction to deal with all of those issues as well, but only the Supreme Court can pronounce an order for divorce or deal with the division of family assets. Deciding which court to start an action in is called making a "choice of forum." This is discussed in more detail in the next chapter, The Legal System > The Law. Back to the top of this chapter. II. The British Columbia Provincial Court The Provincial (Family) Court is usually the most accessible court for lay litigants. The rules which govern the court process, the Provincial Court (Family) Rules, are written in easy-to-understand language and litigants are often not represented by lawyers. There are also a lot more registries across the province for the Provincial Courts than there are for the Supreme Court. The Provincial (Family) Court can only deal with applications made under the provincial Family Relations Act, and it does not have the jurisdiction to deal with the division of family assets under that act or the division of assets under the common law. As a result, the court can only hear claims about these issues:
Judges of the Provincial Court are addressed as "Your Honour," not "sir," "madam" or "hey, you!" A link to the Provincial Court (Family) Rules is provided in the section Resources & Links. If you are involved in an action before the Provincial (Family) Court, you should read and understand these rules. You can get copies of the Provincial Court forms at the court registry or from the court's website, a list of the sample court forms demonstrated in this website is available in the Site Map & Index section. Back to the top of this chapter. III. The Supreme Court of British Columbia Unlike the Provincial (Family) Court, the Supreme Court has the jurisdiction to deal will all family law issues. If the Provincial Court cannot deal with an issue, the Supreme Court is where you will have to file your action. As well, the Supreme Court is the only court which can grant an order for divorce. The major differences between the Supreme Court and the Provincial (Family) Court are these. As well as having the same authority as the Provincial (Family) Court:
There are fewer registries of the Supreme Court than there are for the Provincial Court. Court fees, fees for services like filing documents or starting an action, are also payable. No fees are charged by the Provincial (Family) Court. The Supreme Court is also a lot more formal than the Provincial (Family) Court. While it is possible to represent yourself in the Supreme Court, the Rules of Court for family law matters, the Supreme Court Family Rules, are much more complex and are applied, in general, very strictly. The assistance of a lawyer is highly recommended. There are two kinds of judge at the Supreme Court: masters and justices, both of which this website refers to as "judges" for convenience. Masters have sort of the same kind of authority as Provincial Court judges and are responsible for hearing most interim applications. Justices hear other types of interim applications and hear trials. Masters of the Supreme Court are addressed as "Your Honour." Justices are addressed as "My Lord" or "My Lady," or, depending on the context, as "Your Lordship" or "Your Ladyship." A link to the Supreme Court Family Rules is provided in the section Resources & Links. You can obtain most of the forms the rules refer to at the court registry for free or from the Court's website, and a list of the sample court forms demonstrated in this website is available in the Site Map & Index section. Back to the top of this chapter. IV. The Court of Appeal for British Columbia The Court of Appeal has the same sort of jurisdiction the Supreme Court does. As far as family law matters are concerned, this court only hears appeals from decisions of the Supreme Court. Although the Court of Appeal's central registry is in Vancouver, the court occasionally hears cases in Victoria, Kelowna and Kamloops. Unlike the Supreme Court where a single judge makes a final judgment after trial, a "panel" of three or more judges hears each appeal. These judges reach their decision after hearing from the Appellant, the person who has brought the appeal, and the Respondent, the person defending against the appeal, and considering the law that applies to the problem. The decision of the panel is the decision of a majority of the judges; the judge or judges who disagree with the majority decision are said to "dissent." Decisions of the Court of Appeal may be appealed to the Supreme Court of Canada. You must seek the permission of the Supreme Court of Canada to bring your appeal. The court may refuse to hear your appeal, however, and the court usually issues its refusals without providing reasons. Be cautioned that appeals are a fairly expensive process. An appeal should only be brought after a lot of thought has been given to the expense of the appeal as well as to your chances of success; don't leap to appeal a decision just because you don't like it or are angry, you should give some serious thought to the appeal first. Simply put, the cost of the appeal may outweigh the benefit you will get even if you win. Not only are the filing fees in the Court of Appeal higher than they are in the Supreme Court, the costs of preparing for appeals are often higher than the costs of preparing for trial. All appeals are based on the evidence before the judge who made the original decision, which means that transcripts of all of the oral evidence heard at trial must be produced, as well as books containing all the documentary evidence admitted at trial and all of the pleadings filed in the case. (Transcripts in particular are hideously expensive to obtain.) You must also prepare a book containing your argument, called a "factum," as well as books containing all the case law you will rely on in making your appeal, and make multiple copies of everything. The Justices of the Court of Appeal are addressed as "My Lord" or "My Lady," or, if you want, as "Your Lordship" or "Your Ladyship." Although the Rules of Court for the Court of Appeal must be complied with exactly, they are fairly straightforward compared to the Supreme Court Rules. Still, because of the expense involved and the challenge of making a purely legal argument, the assistance of a lawyer is essential. You can obtain most of the forms the Rules refer to at the counter of the court registry for free; some are also available from the Court's own website. Back to the top of this chapter. Site Navigation
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