You may wonder what legal research is and why do it? Legal research is about learning and understanding the law. A judge can only give you what you are entitled to under the law. And they can only make an order you have asked for. By knowing the law, you can develop a stronger, more convincing argument.
For example, if you are entitled to spousal support but haven’t asked for an order of spousal support, the court will not award it to you. It is important to know your legal rights – what you are entitled to under the law – so that you can ask for it. If you don’t know the law, you won’t know what order to ask for. It is equally important to understand your legal obligations.
In BC, the law includes two elements:
1) Legislation – written laws decided by government (e.g. the Family Law Act)
2) Case law – decisions made judges in other cases
A judge will use both legislation and case law to decide your case. You’ll want to use the law to support your position and convince the judge to decide in your favor. This means you should have a basic knowledge of how to search legislation and case law.
Finding the law
First thing’s first, you’ll want to see what the legislation (that’s the written laws such as the Divorce Act) says about your legal rights.
By now, you’ve learned that the major laws in family matters are the Family Law Act(FLA) and the Divorce Act. The FLA is provincial law and can be found on the BC Laws website.The Divorce Act is federal law, which can be found on this Government of Canada website.
Each law has a table of contents to help you navigate its content.
If you go to the Family Law Act Table of Contents you can see that the act is divided into different parts, divisions, and sections. For example, Care of the Children is dealt with under Part 4. If you want to know about parenting responsibilities, you can find it under Division 2 - Parenting Arrangements at section 41.
Notice there is a definition section under Part 1. This is a great place to go when you aren’t exactly sure what a word means. Words that we use every day may have a different meaning under the law. So, it’s a good idea to check the legal definition in Part 1. For example, you might not call an 18 year old a child, but under the FLA they would be a child because it defines a child as ‘anyone under the age of 19.’
Understanding the law
Now that you know how to find specific laws, you need to gain some skill to read the law. Generally speaking, laws are not written in a way that is easy to understand (but this is changing). The older the law is, the more likely it is to be hard to read. Lawyers are trained to read and understand the law. You don’t need to become an expert at reading law, but if you are representing yourself, you need to be able to understand the laws that apply to your case.
Consider this example of property division.
Situation: You bought a house three years ago with your common law spouse. Now that you are separating, you want to know how to divide the house.
Law: FLA Part 5 - Property Division.
s. 81 says: Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division],
(a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and
(b) on separation, each spouse has a right to an undivided half interest in all family property ... and is equally responsible for family debt.
WOW. That’s not very easy to understand. Right? To understand the law better, try to break it down into simple parts. Like this…
Unless there is a different agreement or court order,
(a) Both spouses are entitled to family property.
Both spouses are responsible for family debt.
(b) On separation, each spouse has the right to 50% of family property.
On separation, each spouse is responsible for 50% of family debt.
It takes some time and practice, but making the legal statements into simple sentences will help you understand the law better. In this example, it becomes important to know what is “family property”.
s. 84 (1) Subject to section 85 [excluded property], family property is all real property and personal property as follows:
(a) on the date the spouses separate,
(i) property that is owned by at least one spouse, …
Let’s simplify that…
Unless it is excluded property, family property is property that was owned by one of the spouses on the date of separation.
Now, the last step is to find out what is excluded property, which is described in Section 85. Once you read that part of the law, you will see that your property is not excluded property.
To help build your case, it is useful to use a worksheet like the Applying the Law Worksheet shown below. Putting information into each column in the table will help you pull all of the important information together.
Under the ‘Law’ column, you would enter the sections of the law about property division. Under ‘Facts,’ you will describe important points about your situation – like when you began living in a marriage-like relationship, when you bought the house and when you separated.
Finally, in the last column you need to state how the law applies to the facts of your case. Think of this column as the conclusion to the first two columns. When you apply the law to the facts, what conclusion can you make about your legal right to the house?
Applying the Law Worksheet
Applying the law to the facts
s. 81 Spouses entitled to half of family property
s.84 Family property is everything you or former spouse own when you separate, except for excluded property
s.85 list of excluded property
Common law relationship began 3 years ago on this date______.
House was purchased for $______ on this date _______.
We used our joint money to buy the house.
We continued to own the house until our separation, which was this date________.
The most recent value of the house was $_______ (from assessment or certified appraisal).
We were in a common law relationship when the house was purchased.
We owned the house at the time of separation.
The house is family property. It is not excluded property.
We are each entitled to half the value of the house on the date of the order.
According to the most recent assessment or appraisal, we are each entitled to $_______. (50% of assessed value).
As you can see, it takes time to find the right law, to understand the law and then to apply the law to your situation. Using the Applying the Law Worksheet can really help. In the next section, you can use the worksheet to apply the law to your case. Use this example as a reference to help you.
© 2016 Justice Education Society