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:

  1. claims under the DA;
  2. claims under the FLA, and other related provincial legislation, such as the Partition of Property Act and the Land Title Act;
  3. claims brought in equity;
  4. claims brought under the common law, including the law of trusts, tort law and contract law; and,
  5. 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.

 

Community Discussion

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Since all of the cases for which I am personally responsible for involve division of family property and debt, I never commence or defend a Provincial Court case.  However, if a meet with an individual and I determine that the case ought to be commenced in the Provincial Court it will be assigned to a junior lawyer and I will supervise the file.

While provincial court may seem more cost effective, there are no costs available to the client (although there are expenses in certain situations). Also, scheduling is easier in the Supreme Court. Although when there is no property division and the parties aren't married, then other than costs, there may be no reason to go to the Supreme Court as the parties may not have enough financial means to cover the expenses during the process. 

 

I do not practice in Provincial Court however, one of the most important distinctions between Provincial and Supreme Court to be discussed  with clients in detail in my view is the  exposure to  and availability of costs, including special costs in   Supreme Court to address success, disclosure issues, litigation misconduct etc see Rogers v Rogers ( Fitzpatrick J)  Fort St John 22570  of March 7 2016 and Harden v Katerberg  for the quantification of  special costs  including those associated with the preparation for an attendance upon the assessment of special costs see 2016 BCSC 2066).

Certainly delay  in having matters heard and thereby esolved  in Provincial Court vs. Supreme Court is  a critical consideration for some clients.