Which court should I choose in a family law case?
In Canada, an application to the court in a family law proceeding can be made either in the Provincial Court or the Supreme Court (depending on the province, Supreme Court is also known as the Superior Court or the Court of Queen’s Bench). Sometimes, you do not have a choice and can only proceed in one court; other times, the person commencing the initial application can choose which court to file documents.
Applications involving guardianship, parenting time or division of parental responsibilities, child support, spousal support, contact with a child or a family law protection order can be made in either Provincial Court or Supreme Court/Court of Queen’s Bench. Why? Because both courts have the authority to make Orders under provincial family law legislation, the Family Law Act. Once an application has been started and is ongoing, though, it is very difficult to move it to a different court.
When a final Order has been granted by the Provincial Court, a new application can be made to the Supreme Court/Court of Queen’s Bench. Because the Supreme Court/Court of Queen’s Bench is the higher court, any orders granted by the Supreme Court/Court of Queen’s Bench will replace those of the Provincial Court. Once an Order has been granted by the Supreme Court/Court of Queen’s Bench, the Provincial Court cannot rule on that same issue.
Additionally, it’s important to note that the Provincial Court does not have the authority to grant Orders under the Divorce Act, for division of property or for adoption. As such, proceeding in Supreme Court/Court of Queen’s Bench is essential if you’re looking for a Divorce Judgment, an Order for Division of Property or an Adoption Order.
One of the biggest differences between the courts is the number of documents that need to drafted and filed for an application in Supreme Court/Court of Queen’s Bench. Unlike Supreme Court/Court of Queen’s Bench, you are not required to file Affidavits or Application Records in Provincial Court. There are very strict rules about procedure and the type of evidence that can be used in the Supreme Court/Court of Queen’s Bench. In Supreme Court/Court of Queen’s Bench, all evidence must be in written form and provided to the opposing party by deadline prior to the court appearance. In Provincial Court, the judge will often allow people to speak about their evidence without it being in written form. Consequently, you often don’t know beforehand what the other side is going to say.
Another big difference between the courts? The ability to award costs. In British Columbia, the Provincial Court cannot award cost to a successful litigant. In Alberta, the Provincial Court may award costs, but rarely does. In contrast, the Supreme Court/Court of Queen’s Bench can award costs and often does, especially in cases where one litigant has been found to be unreasonable.
Two other factors to consider: the length of time it will take for your application to be heard or scheduling as some courts only sit on certain days of the month; and filing fees, applicable in Supreme Court/Court of Queen’s Bench but not in Provincial Court.
The team at Coach My Case have extensive experience in Provincial Court and Supreme Court/Court of Queen’s Bench. At Coach My Case, we can point you in the direction of the Court best equipped to handle your case – call our Legal Navigator for a free initial consult.