Jurisdiction and Forum: Which Law Applies, and Which Court Should I Go To?

Jun 11

Canada’s system of federalism means that sometimes our federal and provincial governments have overlapping or shared jurisdiction over certain matters. If you are thinking of separating or getting a divorce, or exploring your options for a parenting order or child support, you may have noticed that there seem to be a lot of different laws and courts which coexist in the area of family law. The following article will explain the differences and similarities between the two primary family law statutes in British Columbia and the two primary courts which preside over family law matters.

Overview of the Statutes

In British Columbia, there are two statutes that govern a variety of family law issues, many of which may overlap: the provincial Family Law Act and the federal Divorce Act. This dual system exists to allow for both the federal and provincial governments to retain certain important jurisdiction but can create significant complication and confusion.

Federal Divorce Act

Marriage and divorce fall under the legislative power of the federal government, meaning that married couples can navigate their family law issues within the framework of the federal Divorce Act. Importantly, the federal Divorce Act does not apply to unmarried couples, often referred to as “common law couples”, meaning that common law couples are not permitted to navigate their family law issues within the framework of the federal Divorce Act. You can review this blog post for an overview of what it means to be in a common law relationship and how to determine whether you are in one.

Provincial Family Law Act

The provincial government has legislative power over certain aspects relating to marriage and family law, including the solemnization and formalities of marriage, and to issues of property and civil rights more broadly. The British Columbia Family Law Act applies to both married and unmarried couples. Since the federal Divorce Act applies only to married couples, this means that unmarried, or common law, couples must use the British Columbia Family Law Act to resolve their family law matters, while married couples often have the choice between the two statutes, depending on the particular issue in dispute.

Family Law Issues Falling Within Each Statute

Divorce

If a married couple wishes to get a divorce, this is governed entirely by the federal Divorce Act, meaning that the couple must follow the procedure and law set out by this Act in order to get a divorce.

Guardianship, Protection Orders, and Division of Property

Issues such as guardianship over children and family law protection orders, which you can read more about in this blog post, fall exclusively within the provincial Family Law Act. Additionally, disputes over the division of property upon dissolution of a marriage or relationship, which you can read more about in this blog post, also fall within the provincial Family Law Act. This means that if any couple or spouse, either married or unmarried, wishes to determine a dispute regarding guardianship, obtain a protection order, or decide the division of family property, they must do so under the framework of the Family Law Act.

Parenting Arrangements, Child Support, and Spousal Support

Both the federal Divorce Act and provincial Family Law Act have dual jurisdiction over issues of parenting and support, meaning that there are provisions and processes for determining these kinds of issues found in both statutes.

However, it is important to remember that unmarried couples must always use the Family Law Act. Therefore, if a dispute as to parenting arrangements or support, including both spousal support and child support, arises between an unmarried couple, they must resolve this dispute under the framework of the provincial Family Law Act.

If a married couple has a dispute regarding parenting arrangements, spousal support, or child support, the appropriate legislation depends on whether they are currently engaged in divorce proceedings. Where a dispute regarding parenting or support arises within divorce proceedings, that parenting or support dispute, like the divorce proceedings, will be governed by the federal Divorce Act. Where such a dispute couple arises independently of divorce proceedings, the provincial Family Law Act applies.

Summary

To simplify, the following chart provides a general summary overview of which family law issues fall within each piece of legislation:

Exclusive to federal Divorce Act

· Divorce

Dual Jurisdiction

· Parenting

· Support (child support and spousal support)

Exclusive to provincial Family Law Act

· Guardianship

· Protection orders

· Property division

Always remember that unmarried couples must use the Family Law Act to address any family law issues, including those which fall under the category of dual jurisdiction.

Court Jurisdiction: British Columbia Supreme Court and Provincial Court

In addition to the two statutes which govern the area of child support, there are also two courts with concurrent, or shared, jurisdiction over certain family law matters: the Supreme Court of British Columbia and the Provincial Court.

The Supreme Court of British Columbia has exclusive jurisdiction over all matters within the federal Divorce Act, meaning that a married couple wishing to get a divorce must go to this court. Property-related issues also fall within the exclusive jurisdiction of the Supreme Court of British Columbia. This means that any couple, whether married or unmarried, must go to this court to determine an issue relating to division of family property or debt. Finally, you must go to this court to obtain a parentage order, which may arise where a child was conceived through assisted reproduction and a dispute has arisen as to who the parents are.

Many family law issues fall within the concurrent, or shared, jurisdiction of both the Supreme Court of British Columbia and the Provincial Court. This includes:

· Guardianship of children;

· Parenting arrangements, meaning the allocation of parental responsibilities;

· Child support and spousal support;

· Contact orders to spend time with a child;

· Family law protection orders; and

· Relocation.

In any circumstance where a family law issue may be brought before either court, you may wish to consider the practical differences of each. Provincial Court is generally less formal and provides a more flexible forum for resolving disputes. There is generally fewer rules, less paperwork, more individuals representing themselves, and no filing fees to submit your documents. The Supreme Court of British Columbia is a more formal atmosphere, with a greater number of lawyers representing people and stricter rules around procedural matters. There are also fees you must pay to file documents within this court.

Regardless of what family law issues are in dispute and which court you are proceeding in, a lawyer can help you navigate this complex and unfamiliar process. If you would like to learn more, please contact our team of Vancouver family lawyers for a consultation.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

Amy Kaustinen

Amy is a law student in her third year of the JD program at the University of British Columbia Peter A. Allard School of Law. After graduating in May 2024, she looks forward to completing a judicial clerkship at the British Columbia Supreme Court.

Prior to law school, Amy obtained her Bachelor of Commerce (Honours) from Queen’s University, where she studied and gained work experience in corporate social responsibility, non-profit management, finance, and accounting.

She was drawn to law school for the intellectual challenge along with her deeply held desire to help others and make a difference in the world around her. As a former student clinician and Director of Technology and Publications at the Law Students’ Legal Advice Program, Amy learned to deliver empathetic and efficient client service to low-income folks unable to afford legal assistance. In addition to writing for Illuma Law, helping to provide accessible legal information to the public, Amy is currently volunteering at Battered Women’s Support Services, where she helps with client intake, referral services, and preliminary legal research and writing for women in Vancouver facing gendered violence.