Choice of Law and Forum
Two major statutes address family law issues. The Divorce Act (DA) is a federal statute dealing with the issues of divorce and corollary relief, namely custody, access, child support and spousal support. The DA only applies to married couples.
The FLA is a provincial statute and deals with: parentage, including the parentage of children conceived through assisted reproduction; guardianship and, for guardians, parental responsibilities and parenting time; contact, for persons who are not guardians; child support; spousal support; division of property for married and unmarried spouses; and protection orders.
In some cases, most notably where there is an existing action that commenced prior to March 18, 2013, the Family Relations Act will still apply. The FRA may apply to some aspects of your matter, while the FLA applies to others (see Part 13 of the FLA).
Both the Supreme Court of British Columbia and the Provincial Court of British Columbia have jurisdiction to deal with family law matters. The Supreme Court is a court of general and inherent jurisdiction. It may deal with all issues that may arise in the family law context, including:
- claims under the DA;
- claims under the FLA, and other related provincial legislation, such as the Partition of Property Act and the Land Title Act;
- claims brought in equity;
- claims brought under the common law, including the law of trusts, tort law and contract law; and,
- claims resting on the court’s parens patriae jurisdiction.
The Provincial Court has jurisdiction to deal with those matters set out in legislation. It may only deal with matters under the FLA, with the exception of the property and pension division claims under Parts 5 and 6 of the FLA. In essence, the Provincial Court has jurisdiction to deal with matters involving child support, spousal support, and parentage, guardianship, parenting time, contact and protection orders. It may not deal with property division between married or unmarried parties.
There are various advantages and disadvantages to proceeding in the Provincial Court and the Supreme Court. In general, Supreme Court proceedings are more expensive and paper-intensive. There are more steps required in the litigation process, but the court is in the position to make decisions more quickly through the Chambers process. In contrast, Provincial Court proceedings are more “consumer-friendly” and pre-printed court forms are available. It is somewhat easier for a self represented party to navigate through the Provincial Court system. There are minimal filing fees, but there are often significant delays in having matters reach a stage where a hearing is held and a decision is rendered.
Orders for divorce or the division of property can only be made by the Supreme Court.