Do you need to go to Provincial (Family) Court or Supreme Court?

(Transcript of audio clip)

This is a Legal Services Society audio clip about which court to go to for your family law case. This audio clip contains legal information only, and is not intended to give you legal advice on your particular problem. The information applies only to British Columbia, Canada, and is accurate as of October 2007. Information may become outdated as laws change.

Figuring out which court to go to is an important first step in any family law process. In BC, the Supreme Court and the Provincial Court (which is sometimes called Family Court) handle some of the same types of cases. But the procedures, time frames, costs, and kinds of orders granted are different in each court. Here is some information about each court to help you decide which one would better suit your situation.

Note that if you or the other party have already started a court action, you must usually go back to the same court to change the order or take further action. Get legal advice about your options if you want to go to a different court.

You can go to either Provincial or Supreme Court to get or change a court order for child or spousal support, custody, access, or guardianship, or to enforce support payments.

You may be wondering what some of those words mean, like custody, access, or guardianship.

Custody means where and with whom a child lives, and the parent's rights and responsibilities for the child in his or her care.

Access generally means the time children spend with the parent they do not usually live with.

Guardianship means the responsibility for making major decisions for children about such things as education, health care, or religious training, and how to manage anything the children may own.

You can go to either court to get an order for any of these, or for support.

But you must go to Supreme Court if you have property you want the court to divide or protect and you need a restraining order to stop your ex from selling it; if you want a divorce; if your case involves an adoption; or if your former partner lives outside BC.

If you're wondering what a restraining order is, there are two basic types of restraining orders. One is a court order you can get from either court that tells a person they are not allowed to contact or bother another adult or a child. The second is an order you can only get in Supreme Court that tells a person they are not allowed to do some other thing, like selling joint property.

When you go to court, you will have to use the correct law for the court you are in. That is, you need to show on your court forms which law applies to the order(s) you are asking for. In Provincial Court, you can only use the provincial Family Relations Act. In Supreme Court, you can use both the provincial Family Relations Act and the federal Divorce Act.

There are other important differences between the two courts. Provincial Court has an informal atmosphere, while Supreme Court is very formal. There are more Provincial than Supreme courts across BC. There is less paperwork needed for Provincial Court than Supreme Court. Provincial Court also has fewer rules than Supreme Court and allows you to give spoken evidence about your case for either an interim (that is, temporary) or final order. In Supreme Court, you must give written evidence about your case (for example, in an Affidavit) to get an interim order, but you can give spoken evidence for a final order made at a trial.

People going to Provincial Court may or may not have lawyers representing them, but most people in Supreme Court will need a lawyer to help them. In Provincial Court, there are no filing or trial fees required, but in Supreme Court, you will have to pay fees: $208 in filing fees to start your case, $62 to apply for an interim order, and significant trial fees to get a final order. In Provincial Court, the judge cannot make an order that the other party pay your legal and filing fees, but the judge or master in Supreme Court can make such an order.

In some situations, you may be able to use both courts. For instance, you can go to Provincial Court to get a custody order, and then to Supreme Court to get a divorce. Although dealing with two separate courts may complicate matters, it may be easier in some ways — for example, less paperwork — particularly if you get all the final orders you can in Provincial Court. But dealing with two separate courts can be a problem if issues about children or support are in different courts or in both courts at once.

For example, in divorce cases, the Supreme Court is allowed to make new orders about custody and support even if the Provincial Court had already made final orders about these. If a divorce case that includes support and custody issues is started while a Provincial Court case is still going on, the Provincial Court will usually refuse to make any further orders, and leave the case to be finished in the Supreme Court. You may want to get legal help if you are thinking about going to both courts.

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