Family Law 101: The Difference Between Provincial Court and Supreme Court/Queen’s Bench
The lawyers at Crossroads Law often advise their clients on decisions such as which court to choose when filing a court action in a family law case.
In Canada, an application to the court in a family law proceeding can be made either the in Provincial Court or the Superior Court. Depending on the province, the Superior Court is called the Supreme 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 chose which court to file their documents in.
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. That is because both courts have been granted authority to make Orders under provincial family law legislation, the Family Law Act. Once an application has been started and is ongoing, it is very difficult to move it to a different court.
If 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 orders granted by the Provincial Court. Once an Order has been granted by the Supreme Court/Court of Queen’s Bench, the Provincial Court cannot make a new order on that same issue.
The Provincial Court does not have the authority to grant Orders for under the Divorce Act, for division of property or for adoption. That means that you must proceed in Supreme Court/Court of Queen’s Bench if you are 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 writing. This means that you often don’t know what the other side is going to say beforehand.
Another big difference is 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 is being unreasonable.
Other factors to consider are 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 as there are no filing fees in Provincial Court but there are in Supreme Court/Court of Queen’s Bench.
The lawyers at Crossroads Law have extensive experience in Provincial Court and Supreme Court/Court of Queen’s Bench. We can assist you in determining which Court is best equipped to handle your case. Contact Crossroads Law to meet with a lawyer today.
By: Marcus Sixta