What, why and where: Untangling jurisdiction in family law.

• Author: Boyd, John-Paul

It can be a real challenge to figure out which court to go to when a family law problem needs to be resolved by a judge. You may need to go to a court where you live, or a court somewhere else. If you are going to a court where you live, you'll have to decide which of the three levels of court you should be going to.

The answer depends:

* partly on which legal issues you're dealing with,

* partly on where everyone lives and where everything is located, and

* partly on whether you are starting or replying to a claim,

* and all of these issues are about jurisdiction.

"Jurisdiction" means a lot of different things but basically refers to the court's ability to make orders resolving a particular legal dispute, and unfortunately, there are plenty of reasons why a court might or might not be able to deal with a legal problem.

First, I need to explain the structure of our court system.

There are two trial courts and one appeal court in each of Canada's provinces. A "trial court" is a court that makes orders about legal claims, after hearing the evidence of witnesses and the legal arguments of the parties to the dispute. The two trial courts are the provincial court and the superior trial court, and the superior court has different names depending on the province....provincial courts are often extremely busy and usually have heavier caseloads than superior courts. (In British Columbia, the superior court is the Supreme Court; in Alberta and Manitoba, it's known as the Court of Queen's Bench; in Ontario, it's the Superior Court of Justice.) An "appeal court" is a court that deals with legal challenges about the outcome of a trial; these courts hear arguments but no evidence.

The provincial court is the lowest level of court and is established by the government of each province. Its jurisdiction is limited because it can only deal with the legal problems that are assigned to it by legislation. However, provincial courts are often extremely busy and usually have heavier caseloads than superior courts.

The superior trial court is a higher level of court and is established by section 96 of the Constitution Act, 1867. The federal government is responsible for appointing superior court judges, and for paying their salaries. This court has "inherent jurisdiction," which means that it can deal with all legal problems and can make whatever orders are necessary and just, whether there's a specific law that says they can make those orders or not. In addition to dealing with trials, the superior trial court also hears appeals from the...