Some terms in the Divorce Act changed on March 1, 2021
Effective March 1, 2021, the federal Divorce Act uses terms similar to those in the BC Family Law Act.
- The terms decision-making responsibility and parenting time replaced "custody."
- The terms contact and parenting time replaced "access."
If you're representing yourself (going to court without a lawyer), you might want to read some court decisions about other cases like yours. They might:
- help you understand how the law is applied in cases like yours,
- give you some ideas about what to say to the judge, and
- give you some ideas about what the other person (the law calls them the other party) might say to try to support their own position.
When you're in court, you can talk about the cases that support your position.
If you find cases that don't support you, don't ignore them. Think about why they shouldn't apply to you in case the other person mentions them.
When you do this, you're using case law. Case law is created when judges use the laws to make decisions about the cases they hear. After a trial or hearing, every judge writes a report called Reasons for Judgment. This report explains how they reached their decision.
Reading about similar cases will help you understand why a judge might not agree with you.
Where to find case law
You can find case law and legislation in a couple of places online. It can take some time to find what you're looking for, so be patient.
The Canadian Legal Information Institute (CanLII) website has a database of case law and legislation from across Canada that you can use for free.
It lets you link to the laws and even written opinions (called commentary) that apply to your situation.
It's a good place to start looking for case law.
Here are some tips to help you search.
1. Make a list of key words
The first step is to figure out the right words to use. The right search terms will help you find useful cases more quickly.
- What's the main issue? (For example, separation.)
- What are the key facts in my story? (For example, what happened, who's involved, and what's needed?)
- Do I know which legal terms are relevant? (For example, custody or access?)
Look at your list to see if any of the words have synonyms (words that mean the same thing). If they do, add them to your list. Finally, circle the words that seem the best way to describe your problem. Use the best words in your list to start your search.
2. Learn some database search tips
There are hundreds of cases on the CanLII website, so have a look at some standard ways of searching to keep things under control. On the CanLII homepage, you'll see the heading Search all databases. Under that's a list of three search boxes. Click ? on the right side of the search box to see the most common tips. For example:
- Put quotation marks around two or more words to search just the whole phrase and not random examples of the words on their own. For example, if you type "adopted child" you won't get sentences like "The changes were adopted to reflect the best interests of the child" in your results.
- Use AND so that both (or all) of your keywords are in the case results. Otherwise, cases with just one of the words might appear. For example, type child AND parent AND relocate.
All variations of a word will also appear. For example, if you type separation, your results will include separate and separated.
For more detailed information, click Help at the bottom of the search page.
3. Start your search by choosing the jurisdiction (province or territory)
On the homepage, under Primary law, choose British Columbia, if your case is being heard in a BC court. (Or choose another province or territory, if it applies.)
4. Enter your keywords in the search box
Read the search tips and then type your keywords in the first search box. It has the words Document search in it. Click the Return key on your keyboard.
You'll get a list of everything in the database that's related to your keywords. The most relevant results will be at the top of the list. You can order them in other ways. See Review your results for how to do that.
The first list will include cases, legislation, and commentary. Click:
- Cases to see cases that contain your keywords.
- Legislation to see laws that are related to your keywords.
- Commentary to see Reasons for Judgment that are related to your keywords.
5. Review your results
If you have still have a huge number of results, add another keyword or two right away to try to narrow them down a bit.
You can also filter or sort your results by using the dropdown menus. For example, if you click the Cases tab, you'll see options to:
- Change jurisdiction (for example, you can search all of Canada instead of only BC, or you can add another province or territory to your search)
- Limit your search to certain courts
- Limit the dates of the results
- Change how the results are ordered by choosing one of these options:
- Sort by document relevance
- Sort by most recent
- Sort by most cited
- Sort by court level
6. Read through the cases at the top of your results
Read the text that sits right underneath the name of each case to see if it seems related to your situation. If so, click the case name to read about the judge's decision.
Your keywords will be highlighted. Click the arrows on the top right of the page to move up and down through the text to find them. Or scroll through the text to get a rough idea of what it's saying. You can also uncheck a keyword.
7. Improve your keywords if necessary
If you don't find any cases that look like they could help you, change your search keywords or add some more. Look at the keywords showing under the name of each case in the search results. And skim through the cases to look for legal terms or other possible keywords. Then, try again.
8. Check that a case is likely to help you
To do this, check two things:
- Judicial history. Once you've found what seems like a good case to use, check its history to make sure. In other words, you need to know if the decision was reversed (changed) by a higher court. (See Canada's Court System to find out more about which courts are higher courts.) Cases don't always have a history.
- Judicial treatment. To find related decisions where the case was referred to by another judge, click Cited by (number) documents (if it appears).
- Click any case names in the results and find the highlighted area (or areas) where the case you're interested in is mentioned. These might show you more recent cases that are similar to yours.
- Read the cases carefully to make sure they'll help you and not the other person.
You can cite (refer to) any case law in any court (even cases from other provinces), but the weight it's given by the court will vary. The higher the court and the more courts that followed a particular line of reasoning (a way of thinking), the more persuasive a court in BC might find it.
Other places to look for case law
You can find judgments and decisions on
CanLII Connects has articles and information about cases in Canadian courts from several different sources. Click Search at the top right of the page. The search boxes look the same as the search boxes on the CanLII homepage. You might get more results here than you did on the CanLII website.