THE COURT PROCESS
WHAT IT IS AND WHAT HAPPENS
CIVIL VS CRIMINAL COURT
CIVIL COURT
- Person vs. Person
- Police & Crown not usually involved
- Child Custody Orders, Divorces, Injunctions
- Starts with writ, petition or application
- Results in financial judgments
CRIMINAL COURT
- State vs. Person
- Police and Crown involved
- Crimes, Criminal Code of Canada
- Starts with an information (formal written complaint)
- Seeks proof beyond a reasonable doubt
- Results in fines, probation, prison
PROVINCIAL VS SUPREME COURT
PROVINCIAL COURT OF BC
4 Divisions
1. Criminal Division
2. Family Division or Family Court
3. Small Claims Division
4. Traffic & Bylaw Matters
Criminal & Family Divisions
Hears Criminal & Civil Cases Under
- Criminal Code of Canada
- Family Relations Act
- Family Maintenance Enforcement Act
- Family & Child Services Act
- Young Offenders Act
- Has no costs
- Is more people friendly
- Cannot deal with divorce or property matters
- Can not deal with matters where partner is outside of BC
- Can be overridden by Supreme Court
- Can take longer to get an interim order
SUPREME COURT OF BC
Hears Criminal and Civil Cases Under
- Criminal Code of Canada
- Family Relations Act
- Family Maintenance Enforcement Act
- Adoption Act
- Land (Spouse Protection) Act
- Divorce Act
- Hears appeals of Lower Court decisions
- Overrides decisions of Family Court
- Is costly
- Is more formal
- Can deal with all matters
- May be further away and in session less often
STEPS OF A CIVIL CASE
FAMILY COURT
FIRST APPEARANCE
The Judge
- Ensures you have had a chance to see a lawyer
- Can hear evidence
- Can make Consent, Interim or Final orders
- Can refer you to mediation
The Judge may set a date for:
- Family Case Conference
- Trial Preparation Conference
- Trial around some of the issues
NOTE: In some situations, jurisdictions you must attend a Parenting After Separation program before you attend court.
FAMILY CASE CONFERENCE
- Is used if Custody, Access, or Guardianship is an issue
- Mediates disputed issues
- Used to clarify and narrow issues that must be set for trial
- Explores non-trial options
- Not used for issues requiring evidence
- Interim, Final and Consent Orders may be made
- Refers parties to a Family Justice Counselor
- Directs parties to attend another Family Case Conference
- Males any other order or direction considered appropriate
- Gives a non-binding opinion on the probable outcome of a trial
- Sets a date for a trail preparation conference
- Sets a trial date.
TRIAL PREPARATION CONFERENCE
- Confirms amount of time needed for trial
- May set trial date and order parties to produce a summary of proposed evidence or a statement of agreed facts
- May grant permission to a party to submit evidence by affidavit
- Makes any other order or direction
HEARINGS AND TRIALS
- Both are presided over by a judge
- All Notices of Motions are hearings
- Trials are lengthier and generally deal with substantive issues that require the hearing of evidence.
SUPREME COURT
PLEADINGS
- Presentation of documents outlining the case in detail
- Are necessary so trial date can be set once closed (finished)
- Allow a trial date to be set at Court Registry and by delivering a Notice of trial to everyone
- Are subject to later changes
1. Petition or Writ filed in Court Registry by plaintiff
2. Petition, Writ, Statement of Claim served on defendant
3. Reply (Appearance, Statement of Defence (Counterclaim) filed by defendant
DISCOVERY
Meetings where each party can question each other and examine documents
3 MAIN TYPES
1. DISCOVERY OF DOCUMENTS
Each side provides a list of all its relevant documents (papers)
2. INTERROGATORIES
Each side gives the other a series of questions to answer under oath
3. EXAMINATIONS FOR DISCOVERY
- Each side asks the other party questions
- Your ex’s lawyer asks you questions
- You speak under oath
- You are usually in a lawyer’s office, before a court reporter
PRE-TRIAL CONFERENCES
- Are meetings between the judge and people involved
- Can be requested by Judge or either party
- Are intended to shorten preparation by clarifying issues
- Are used to explore settlement options
JUDICIAL CASE CONFERENCES RULE 60E
- Supreme Court
- Informal Hearing
- May be Mandatory 1st step
- In place until at least July 2, 2004
THE TRIAL
1. Opens-Plaintiff’s lawyer briefly explains what the trial is about
2. Plaintiff’s lawyer introduces evidence and calls witnesses
3. Defendant’s lawyer cross-examines Plaintiff’s witnesses
4. Plaintiff’s lawyer can re-examine witnesses
5. Plaintiff’s lawyer briefly closes
6. Defendant’s lawyer briefly introduces case
7. Defendant’s lawyer introduces evidence and calls witnesses
8. Plaintiff’s lawyer cross-examines Defendant’s witnesses
9. Defendant’s lawyer can re-examine witnesses
10. Defendant’s lawyer briefly closes their case
11. Plaintiff’s lawyer presents arguments to the judge
12. Defendant’s lawyer presents arguments to the judge
13. Judge decides outcome (verdict)
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