For key case law see Continued Legal Education’s Annotated Family Practice Guide and Family Law Sourcebook.
The second element of the law is case law. These are the previous decisions of judges. You might have heard the term “precedent”. Legally, this is when a decision made by a judge becomes the standard for how other judges make decisions.
Laws are not always clear. They can be interpreted in different ways. A judge must decide how to interpret the law. Case law helps to guide judges on how to interpret the law and make decisions in a case.
Imagine there is a law saying: You cannot ride your bike on major roads without a helmet. If the law doesn’t define what “major” roads are, a judge must decide. Now, imagine that a previous judge wrote a decision saying that: Roads with 4 or more lanes are major roads. This creates a precedent. It is case law. Other judges making decisions about bike helmets and roads will use this judge’s 4 lane definition to make decisions.
Legislation makes laws. Case law provides guidance on how the laws should be interpreted. As you can see, using case law to support your case can help the judge understand how to interpret the law in your favour.
The key to using case law is to be sure to use cases that support your claim. To do this, you need to be able to research past cases. When you are representing yourself in court, this kind of legal research is very important.
Imagine, for example, if you are able to find a case where the situation is like yours and the decision is the same as the one you want. Providing this information to the judge is very persuasive. It will help support your case.
At the same time, it is important not to ignore cases that clearly do not support the outcome you want. There is a good chance the other person or their lawyer will use those cases. You need to be able to say why that case does not apply in your situation. If you are finding lots of cases that don’t support the legal argument you are making, you should reconsider your position and think about settlement.
However, there are thousands of family law cases that have been decided in BC and even more across Canada. How do you find cases that show what happens in cases like yours? How do you know which case are the right cases?
Before you start your research, you have to know what you’re looking for. There are 4 keys to success for choosing the right case. Below, they are numbered in order of importance.
1) The Best Outcome
On your Key Issues Worksheet you listed the areas of conflict between you and your former spouse. Consider each issue and what you want the court to decide. You need to find cases that relate to the outcomes you want. For example, if you want the court to award you more than half the value of the family vacation home, you will search for cases that awarded more than half the vacation home to an applicant.
This is the most important criteria for choosing the right case. Select cases where the outcomes of the cases are the same as the outcomes you want.
2) The Facts
Next, you’ll want to take a look at the facts of different cases. You want to find cases that have facts or issues that are similar to those in your case. If you find these cases, you can use them in court and ask the judge to decide your case in a similar way. Present cases where the facts are similar to your case and the decision is the same as the outcome you want.
3) The Court
Searching case law can take a lot of time. Start with BC Supreme Court and Appeal Court of BC and search hard. Use cases with the outcomes you want and similar facts to your situation.
If you find cases, be sure the decision was not over-turned by a Supreme Court of Canada case. If you don’t find cases, search BC Provincial Court.
Only use cases from other provinces if you cannot find BC court cases.
The next most important consideration is the level of the court and the location. In Canada, higher level courts can change the decisions made by lower lever courts. Decisions from the same, or a higher-level court, are binding on lower level courts.
The Supreme Court of Canada (SCC) is the highest court in Canada. In BC, the order of the courts is: the Court of Appeal, Supreme Court and then, Provincial Court. If you can’t find a decision from the Supreme Court of Canada or from a BC court, you can search courts from other provinces. However, decisions from different provincial courts are not binding on BC courts. Those decisions may or may not be followed.
When searching for case law, select decisions from the courts in this order:
Image you are preparing for a trial in BC Provincial Court.
There is a law that states: You must have some trees in your front yard.
What does “some” mean? The law isn’t clear. So you research case law. You find 2 cases.
Which case is best?
ANSWER: The most important case will be the BC Supreme Court case. That case is binding on BC Provincial Courts. Thus, according to BC case law, you must have at least one tree in your front yard. The BC Provincial Court judge will not need to follow Case 1, but s/he may consider it.
If you had found a Supreme Court of Canada case that said “some means at least 2 trees,” you would select that case because it is from a higher level of court. The judge would need to consider this case.
4) The Date
Check to see if there are dissenting judgments. This means that other, similar cases came to a different conclusion.
Higher level courts that disagree with a case may make a different decision. This would over-turn the earlier case.
The date of the decision is the final consideration when selecting cases. Keep in mind that each of the other three points is a higher priority than this one.
What happens if you find two decisions from the same level of court with similar facts and outcomes? Look at the date. Select cases where the decision is most recent. A judge will consider a decision from last year more than a decision from the 1990s.
Note that in BC, the Family Law Act became law in March 2013. If you are using the FLA in your case, be very careful about choosing cases that were decided before 2013.
Also, make sure the decision hasn’t been over-turned. When a decision is over-turned, it means that a court has ruled that the decision is no longer good law. Over time, our society changes and so does the interpretation of laws. Be careful when using any case that is more than 20 years old. The law may be out of date and the interpretation of the law may have been over-turned.
It’s helpful to have a basic knowledge of what the leading cases around your issues say. For a summary of some leading Family Law Act cases see JP Boyd on Family Law. Be sure to check that there haven’t been any newer cases that overrule these cases.