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This chapter provides a brief overview of the law, the common law system, and legislated laws. This chapter also discusses the choice of law and forum — deciding whether to begin an action under the Divorce Act or the Family Relations Act, and deciding whether to start that action in the Provincial Court or the Supreme Court. Introduction Under Canada's constitution, the legislatures of the federal and the provincial governments both have the power to make laws. Each level of government has its own particular area of jursidiction, meaning that a subject that the federal government can pass laws on, the provincial governments can't, and vice versa. For example, the provinces have jurisdiction over property rights, so they can pass laws governing real estate, the sale of cars, the division of family assets and so forth. The federal government doesn't have this capacity, except in certain special circumstances. On the other hand, the federal government can pass laws dealing with the military, Canada's First Nations, and divorce, things which are outside the jurisdiction of the provincial governments. This distinction is important in family actions because the laws of both the federal and provincial governments can bear on your problem, and you need to know which law governs what issue. Legislated laws are only one source of "the law." Our constitution is another, and another is the common law, also known as judge-made law. The fundamental principle of the common law is the idea that when a court has made a decision on a particular issue, another court facing a similar issue, with similar parties in similar circumstances, ought to make a similar decision. Courts are said to be "bound" by the decisions of earlier courts in previous cases. As no two cases are entirely alike, each court's decision is said to "stand for a principle," a statement of what the law should be in the particular circumstances of that case. Often this principle is an elaboration or a clarification of the general common law rule on a particular subject; sometimes it is a statement about what the law ought to be. Our constitution requires that the courts be independent from the government and vice versa. Despite this separation, the courts have a certain kind of authority over the government and the government has a certain kind of authority over the courts. For example, if the government passes a law that the court finds is contrary to the constitution, the court can strike down the legislation or require the government to change the legislation. On the other hand, the government has the authority to pass laws that change rules made by the courts, but not the authority to change a court's decision. An excellent explanation of the various sources of the law, and the interaction between legislated law and the common law, can be found at the website of the federal Department of Justice. Back to the top of this chapter. The Common Law The common law is developed by the courts as they deal with each case. The common law of Canada is hundreds of years old, and dates back to court decisions made in medieval England. Each successive court dealing with a particular case is required, usually, to follow the decisions of previous courts which dealt with the same sort of case in the same sort of circumstances. As a result, the decisions of the the court are sometimes called precedent decisions, which describes how one case can stand a "precedent" in another case later on. Think of it like this. A long time ago in England, someone sued someone else for riding a horse onto his potato field. A court decided this violated the idea that you shouldn't be free to enter onto the property of another unless you are invited to do so, and found that the rider had committed trespass. Someone else riding a different horse onto a different field fifty years later would be found liable for trespass based on the principle established by the first court. The first case was a "precedent" for the second. Common Law and the Government While the court is more or less free to develop the common law as it sees fit, the principles of the common law can be overruled by laws passed by the governments. For example, the law which dealt with the interpretation and enforcement of contracts was at one point entirely governed by the common law. The government, as it decided it needed to regulate different aspects of the law of contracts, has passed legislation covering lots of different areas of contract law, including such laws as the provincial Sale of Goods Act or the federal Advance Payments for Crops Act. 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 right of action created by the courts. The Family Relations Act now expressly forbids a spouse from bringing an action for enticement, overriding the common law rule. Of course, the laws of the provinces are not all the same. You used to be able to sue someone for "breach of promise to marry," breaking off an engagement. Our Family Relations Act expressly states that you can't sue for breach of promise to marry. This is, curiously, not the case in Alberta, where the provincial family law legislation still permits such claims. Common Law and Legislated Law This leads to another important aspect of our legal system and the common law. The common law also plays a role in interpreting legislated laws made by the governments. Much of the case law in family matters doesn't deal with ancient common law principles, it deals with how the courts have interpreted the legislation bearing on family law in the past. For example, s. 89(1) of the Family Relations Act states that: A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: The case law dealing with spousal support is all about how this particular section of the Family Relations Act has been interpreted in past cases. A lawyer making an argument about why spousal support should be awarded to his or her client would present argument to the judge supported by case law showing that this section has been interpreted to award spousal support in the past to spouses in circumstances similar to those of his or her client. Finding Case Law Because the common law consists of records of the decisions of various judges over the past several hundred years, the common law is researched by looking at the written decisions of judges, called "Reasons for Judgment" or just "Reasons," in these past cases. These reasons 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 standing in front of a giant rack of musty, leather-bound books, he or she is usally standing 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 on family law is called Reports on Family Law, or RFL for short. You can find collections of case law in the library of your local courthouse or at a law school in your neighbourhood. These libraries are open to the public. In addition, you can often find other materials that sort of summarize what the law has to say on a particular subject. The best materials on family law are two books published by the Continuing Legal Education Society of British Columbia:
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. The easiest way to find case law nowadays is on the internet, as many of these cases are available on-line. The British Columbia Supreme Court, the British Columbia Court of Appeal and the Supreme Court of Canada all have searchable databases of cases available on the web, and a link to these websites is provided in the section Resources & Links. You can also get help doing research from the librarians at your local law library, who are really quite helpful, and the law library at UBC has a research desk that can assist in limited matters. You might also consider hiring a law student to plough through the law for you, and the UBC and UVic law schools will have job posting boards where you can put up your needs and contact information. If all else fails or your issue is really complex, try hiring a professional legal researcher. A list of written and electronic resources relating to family law is provided in the Resources & Links section of this website. Back to the top of this chapter. Legislation Both the Parliament of Canada and the Legislature of British Columbia have the power to make new laws or change existing laws, and each government has the power to make laws within their own areas of jursidiction, as set out in ss. 91 and 92 of the Constitution Act, 1867. For example:
Sometimes the subjects over which each level of government has jurisdiction overlap and, according to a legal principle called the "doctrine of paramountcy," all laws are not created equal. Under this doctrine, federal legislation is "superior" to similar provincial legislation, in much the same way that the Court of Appeal for British Columbia is "superior" to the Supreme Court of British Columbia . This is important because in family law both the federal Divorce Act and the provincial Family Relations Act deal with child support, spousal support, access, and custody. Because of our constitution, only the Divorce Act deals with divorce, and only the Family Relations Act deals with the division of property. The two most imporant pieces of legislation relating to family are, as you may have gathered, the federal Divorce Act and the provincial Family Relations Act. Because family law issues can be very broad and touch on other areas of law, such as contract law or company law, other pieces of legislation may apply to a problem. For example, the Name Act allows a spouse to change her name following a divorce, the Adoption Act deals with adoption (duh), and the Companies Act deals with the incorporation of companies, shareholders' loans and other things that may be important if one spouse owns or controls a company. The section Legislation has a more detailed explanation of the other laws that are commonly involved in family law disputes; the section Resources & Links provides links to most of the relevant federal and provincial legislation. Back to the top of this chapter. Making the Choice of Law and Forum As has been already been discussed, both the federal Divorce Act and the provincial Family Relations Act deal with family law issues. As well, both the Provincial (Family) Court and the Supreme Court have the jursidiction to hear cases dealing with family law issues. Deciding which legislation you are going to claim under is making a "choice of law." Deciding which court you are going to bring your claim in is making a "choice of forum." Jurisdictional Issues Because of the provisions of the Constitution Act, 1867, the federal government has the authority to make laws on the following subjects: Because of the same act, provincial governments have the authority to make laws dealing with these subjects:
To further complicate matters, the Provincial (Family) Court can only deal with applications involving laws made by the provincial government and, even then, it cannot deal with applications involving the division of a couple's assets or adoption. In family matters, the Provincial Court can only deal with applications involving the following subjects:
The Supreme Court, on the other hand, can deal with:
If you wish to make an application for an order for divorce, adoption, or the division or protection of family assets, you must make your application to the Supreme Court. Otherwise, you can make your application in either court. To make matters worse, there can be concurrent proceedings dealing with the same people before both the Provincial and Supreme Courts. For example, an action for a couple's divorce can be before the Supreme Court at the same time as an application for the custody of their children is being heard by the Provincial (Family) Court. However, as the powers and jurisdiction of the Supreme Court of British Columbia are superior to the of the British Columbia Provincial Court, matters before the Supreme Court will take precedence if there are applications before both courts for the same relief. In such a circumstance, either party can make an application that the proceedings in the lower court be "joined" to those in the Supreme Court so that the proceedings are all heard at the same time and before one court. Choice of Law If you wish to obtain a divorce, you must make your claim under the Divorce Act. If you wish to obtain a order dealing with property, you must make your claim under the Family Relations Act. However, if you wish to apply for an Order for anything else and you are married, you may make your claim under either piece of legislation. There are one or two points you may wish to consider, however. Only married spouses make make applications under the Divorce Act. Common-law and other unmarried couples may make applications for relief under the Family Relations Act alone. If your case is before the Provincial (Family) Court, you must claim under the Family Relations Act. If your case is before the Supreme Court, you may claim under either the Divorce Act, the Family Relations Act or both. The following chart shows which law deals with which issue.
Choice of Forum "Forum," for lawyers, refers to a particular level of court and the jurisdiction in which that court is located; in this context, choice of forum means making a choice to proceed in either the Provincial (Family) Court or the Supreme Court of British Columbia. As previously been mentioned, the Provincial Court has certain limits on its jurisdiction and, consequently, limits on those applications it can hear. The supreme court, on the other hand has the jursidiction to deal with every almost matter of law within British Columbia. It also has something called "inherent jurisdiction," meaning that the Supreme Court, unlike the Provincial Court, is not limited to the authority it is given by legislation. It is safe to say that, as far as family matters are concerned, the Supreme Court can deal with everything the Provincial (Family) Court can in addition to everything that court cannot deal with. As has already been mentioned, the process of each court is guided by each court's own rules. The Supreme Court Rules of Court offer a much wider variety of remedies and relief, particularly in terms of the information one side can compel the other to produce during the course of an case. For example, the Supreme Court rules offer both parties the ability to compel the other to submit to an Examination for Discovery or compel the production of records from a company. These disclosure mechanisms are not available in the Provincial Court. As well, while both courts can act to enforce their respective orders, only the Supreme Court has the power to punish someone for contempt court or of an order it has made. Finally, you may wish to consider the relative complexity of the two courts' sets of rules, particularly if you plan to represent yourself and not hire a lawyer; see the chapter The Legal Process > The Courts for more information on this subject. The following chart shows which level of court can deal with the different issues that arise in family law disputes.
While it is possible to start an action in the Provincial Court to deal with one or two issues (like custody or child support) and later start an action in the Supreme Court to deal with other issues (like dividing property) it's usually best to confine yourself to a single court to avoid overlaps and keep things as simple as possible. Back to the top of this chapter. Site Navigation
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