Next season, one of our episodes will be on the theme of "Family Court 101" and will discuss the basics of Family Court and its court processes. The following is an introduction to the topic.
What is Family Court?
For many Canadians, the court system can seem complex and inaccessible. For those who are also dealing with the emotional strain accompanying family legal issues, the task of navigating Family Court can seem particularly daunting.
A look at the larger court structure can help break down what Family Court is and how it works. In Canada, there are two courts which deal with family legal issues: provincial courts (“Family Court”) and Supreme Courts. Family Courts are simply branches of the provincial courts that deal with certain family law issues. It is important to note that while there is some overlap in what issues the two different courts can address, there are also jurisdictional requirements that state that certain issues are to be addressed in a particular court. When considering what court can address a particular family law issue, it is important to keep these differences in mind.
Family Court Jurisdiction: What Issues Can be Addressed in Family Court?
Family Court can address issues related to:
- child custody and guardianship,
- access to children,
- parental, spousal, and child support,
- child protection orders and
- personal protection orders.
Family Court cannot deal with cases involving:
- adoptions, or
- the division of family property.
The last three must be addressed in Supreme Court as they fall under the purview of federal laws. In B.C., Family Court’s jurisdiction is governed by the Family Relations Act, the Family Maintenance Enforcement Act, the Child, Family and Community Service Act, and the Adult Guardianship Act. If you wish to obtain a divorce, have assets divided or make an adoption order you cannot address these in Family Court.
The Application Process
The application process for Family Court varies depending on what the particular family law issue is. Some carry certain pre-court requirements that applicants attend programming such as Parenting After Separation courses or meet with a Family Justice Counsellor to explore alternative dispute resolution options. The family law clerk at any provincial courthouse can help applicants understand the requirements for their particular issue and what steps they will need to take to apply to the court. If the situation is such that one of the parties or the parties’ children are in danger, such as in domestic violence and abuse cases, personal protection orders may be obtained to protect individuals during the legal process.
Basics of the Family Court Process
There are two ways in which Family Court may resolve legal disputes. First, a settlement of the parties’ dispute through negotiation or mediation may resolve the dispute before it goes to court. Negotiation is a bargaining process where parties attempt to reach an agreement regarding the dispute with or without lawyers. In mediation, a trained and neutral third-party meets with the parties and tries to help them reach a settlement. If negotiation or mediation processes are successful, the settlement can be put into writing and will confer legal obligations upon the parties. This is called a consent order.
In some cases, judges may require that the parties attend a pre-trial “Family Case Conference” over which the judge will preside. These conferences are private, informal meetings where the judge can ascertain what issues are disputed, mediate these disputes, try to assist the parties to reach an agreement and determine what other alternatives to a trial might be feasible. If an agreement can be reached, the judge can make a consent order during the conference.
If alternative dispute resolution methods fail or are not feasible, the parties will go to trial before a Family Court judge who will weigh the evidence and both parties’ arguments to make an ultimate order regarding the dispute. Witnesses may be called by both sides to support their arguments, but in some cases the only witnesses are the parties to the dispute themselves. Parties may self-represent in Family Court and do not require lawyers.
After trial, final decisions in Family Court may be appealed to the Supreme Court. Decisions from the Supreme Court can likewise be appealed to the Court of Appeal. This is an expensive process which may outweigh the benefits from a positive ruling.
Accessibility and Self-Representation in Family Court
Certain structural aspects of Family Court make it more accessible to lay litigants. The court rules are written in plain language that is easy to understand, making it much easier to self-represent in Family Court than in Supreme Court or a Court of Appeal. The court forms are also written in plain language, allowing applicants without legal training or counsel to fill them out themselves. Family Court also does not charge litigants court fees, making it considerably less expensive than pursuing a claim in Supreme Court or the Court of Appeal. Generally speaking, Supreme Court and the Court of Appeal have much more formal and structured court processes than Family Court. They carry more complex rules governing court processes and adhere to them more strictly.
Family Court Today
The number of cases initiated in Family Court has been on the rise since 1995, and the Court’s emphasis has shifted to alternative dispute resolution and informational programming in an attempt to alleviate some of the resultant pressure. Today, efforts are generally made to resolve the family law dispute before it goes to trial before a judge. Despite this, the number of Family Court cases remains on an upward trend and the consequent overburdening of the court system has led to criticisms that taking claims to Family Court is an arduous and slow process.
Shari Willis is a J.D. Candidate at the University of Victoria Law School. She completed her B.A. at Simon Fraser University in 2010 with a major in Women's, Gender, and Sexuality Studies and an extended minor in English. Shari formerly worked as a support worker and was active in campaigns and initiatives dedicated to ending violence against women.
The views in this blog are not necessarily representative of AdviceScene and do not constitute legal advice.
Category: EpisodesNov 1 2012 8:15 PM2 Comments
Most will agree that being friends after a relationship is difficult as the question of ulterior motive and resentment can hover in the clouds. If friendship is in the cards it requires clear boundaries, a very understanding new partner and an ability of both parties to take responsibility and be accountable to the outcome of their relationship. The truth is that if two people who once were lovers can be friends there can be a comfortable and enduring trust that can serve to help lay the foundation for new relationships and the future. There is really not that much difference if the relationship was one of cohabitation, marriage or simply a long term partnership when it comes to the matters of the heart.Continued...
Category: EpisodesOct 31 2011 6:42 PM1 Comment
"Trailblazer” isn’t a term often associated with divorce professionals. With the divorce rate hovering around 50 per cent, and over a million children annually experiencing their parent’s divorce, it is critical that couples understand the impact of divorce on families, children, the individual and society.
What I find most astounding is that the divorce rate rises with subsequent marriages (http://www.more.ca/relationships/single-life/divorce-myths-debunked/a/30888) – this only demonstrates that people are not learning from their mistakes, and/or not taking the time to understand their own needs and expectations. Divorce education is imperative. It’s easy to see why divorce has spawned a lucrative industry. Continued...
Category: EpisodesOct 4 2011 11:52 PMNo Comments
I am both proud an honoured to be a guest on Family Matters with Justice Brownstone. This is by far one of my most informative and personal interviews; Justice Brownstone digs deep as I share my research and lessons learned so that anyone can have The Smart Divorce. He also delves into my own divorce journey, so that viewers are empowered with information and knowledge. Tune in tonight, October 4, at 10:30pm on CHCH TV.
If you are interested in learning more about The Smart Divorce Resource ToolKit ,which Justice Brownstone speaks so highly of, please email email@example.com for more information.
Category: EpisodesOct 4 2011 11:41 PMNo Comments
Lorne MacLean of the MacLean Family Law Group whose website is at www.bcfamilylaw.ca enjoys providing the public with free legal information and lauds Judge Brownstone and producer Nancy Kinney for their important work in democratizing the law and bringing important information to people who are facing the stormy seas of marriage breakdown with their outstanding legal reality show FAMILY MATTERS TV. MacLean is in high demand as a speaker and author of numerous articles on family and divorce law. Here is MacLean's very popular article on protecting yourself before and during a divorce or marriage breakdown. If you have questions he can be reached at firstname.lastname@example.org .Continued...
If you are considering or are at the start of a marriage breakdown or separation you need to take immediate steps to protect yourself and the first thing you should do is contact a good family attorney and spend 30 minutes or more with them getting a summary of your basic rights and obligations. We feel the initial consultation is likely the most important part of starting a case and likely the best money you can spend early on in a case. People have so many misconceptions and can accept or make unfair offers based on anecdotal opinions from well meaning but often "legally clueless" friends and family members.
Category: EpisodesSep 27 2011 8:32 PM2 Comments
At MacLean family Law Group www.bcfamilylaw.ca we as Vancouver divorce and family lawyers have handled a number of spousal and child support retroactive cases including an interim retroactive support award case called J v J . Our client was ecstatic when we obtained one of the highest interim awards of spousal and child support for our client which approached $30,000 per month combined, together with substantial retroactive child support.
We have also represented numerous clients where we have sought to retroactively correct child support upward to reflect increases in the paying spouses incomes as well as to retroactively correct downward support based on a paying spouse’s lower income on the basis that the paying spouses should pay support on the proper income under the guidelines.
If you want to correct spousal or child support retroactively call us at any of our 4 offices province wide or fill out our contact form so we can begin to assist you.
A good summary of the obligations each spouse has in this area can be found at the Justice Canada website Continued...
Category: EpisodesSep 27 2011 1:39 PMNo Comments
I have been involved with helping clients put together prenups and while I agree that some form of pre marriage agreement is prudent if there are a lot of assets, we have gone overboard. The biggest problem is that prenups simply do not lay the foundation for a partnership. Take for example two people that go into a business together 50/50 and they both contribute in their way to the business but only one of the parties gets to keep all the benefits if they decide to part. I am guessing that very few people would entire that type of business arrangement. That is however the scenario that can be created with a poorly drafted prenup. Prenups are best left out of the lawyers hands until all the issues and scenarios have been discussed at which time they can paper the deal. Be very careful however as you may destroy the partnership before it begins. Marriage is about love, security, trust, commitment and faith and a poor prenup can kill the security, trust and commitment factor pretty easily.
Category: EpisodesSep 26 2011 7:27 PMNo Comments
Balance Needs VS Wants
There is a ton of pier pressure around back to school clothing and supplies. Make a list of their “needs” and agree that the children will get one or two of their “wants” met and then allocate a set dollar amount that they are free to spend.
Set Budget in Advance of Shopping
Before you venture into any store with the wondering eyes of your children set a non-negotiable budget. This is not just for their purposes but it is to keep Mom and Dad from caving into those pleading eyes.
Make a detailed list before you hit the stores
We know we should not go grocery shopping when we are hungry and the same rule applies when taking the kids for “back to school” shopping. Way too many temptations for even the strong willed.
Set Budget for extracurricular activities before you sign up
After school activities are an important part of a child’s development and while we want them to be involved, we need to balance activities with our ability to pay. Set a budget per child that covers lessons, equipment etc and then engage in a conversation with them and the other parent about allocation of resources before you sign them up. Kids will also take more ownership of their schedule this way as well.
Empower kids financially
We give children an allowance for “extra” things but consider providing them enough money so that they can learn to budget for the things they need as well. One of the big stresses in divorced families is the loss/damage of things that go back and forth. If starting around age 11, your child is responsible for their clothing budget then they will take ownership and amazingly - things all of a sudden do not seem to go missing.
Category: EpisodesSep 26 2011 7:24 PMNo Comments
A common sense trend to Resolving Matrimonial Issues
Finding yourself on the doorsteps of divorce is hard enough emotionally but add the multitude of decisions that are going to have to be made and it can feel completely overwhelming. While there are only two main areas for decision-making; kids and money, coming to resolution can take years and use up a lot of your hard earned wealth. While there is more of a trend towards mediation, many people still feel the need to hire top guns with the perception that their “rights” will be better attended served. In many cases on the pursuit of one’s “rights”, “best deal” or “win”, the cost associated with an unpredictable outcome does not justify the time or the means.
On the continuum of resolving divorce issues, on one end is Litigation and the other end, Mediation. Moving from one spectrum to the other you might find, arbitration, collaborative law, interest based mediation, and other hybrids all worthy of consideration. While there may be the perception that litigation is in fact “taking control” the opposite is usually true. The reality is that retaining a litigation lawyer sets in motion a series of applications, affidavits, court appearances that destroys assets and relationships. Litigation is prudent in some cases where the parties have pursued every other means to resolve their issues with no success. While the outcome with litigation may be “just” in the face of the law, it is often not “fair”. The judge has to use the information put forth by the lawyers and in the affidavits with the assumption that both parties are being truthful. We know this simply is not the case. Take for example, where one party is basically telling the truth and the other is not, the outcome will likely be somewhere in the middle as there is simply not enough time or resources to achieve the real picture. To seek litigation to either prove your point, make the other person pay or to assume the outcome will be a win for you is unfortunately naive.
It is best that you and your spouse make the final decisions about money and kids, regardless of whether you get along or not. Ensuring you are an empowered decision maker with financial and co-parenting knowledge is the best recipe for success. New mediation models like “Independently Negotiated Resolution” are process and results driven and ensure that both parties are well equipped to make decisions. While mediation has been traditionally thought of for only amicable couples, new innovated models can achieve resolution for conflicted families as well. The key is to keep your assets in your pockets and preserve relationships.
Category: EpisodesSep 26 2011 7:22 PMNo Comments
Category: EpisodesSep 21 2011 1:51 PMNo Comments