Which laws apply to your case?

There are two types of laws (statutory or statute-based and common-law or case-based).

Statute-based law

The two statutes, laws passed by government, that may apply to your family law case are:

  • the Divorce Act, which is a federal law, and may only be used in Supreme Court by people who were married to each other, and
  • the Family Law Act, which is a provincial law, and may be used whether you are married or not. It can generally be used in either Supreme Court or Provincial Court, except for those parts of it that deal with property, which can only be used in Supreme Court.

Throughout this website, you'll find references to these statutes. You need to know which law you want to use when you go to court. The laws you need to use will affect whether you go to Supreme Court, Provincial Court, or both.

The Family Law Act and the Divorce Act overlap in some areas but not others. The Divorce Act applies only if you're married but the Family Law Act can apply to both married and unmarried couples. Even if you are getting a divorce, you must apply under the Family Law Act for the division of property or debts, a family law protection order, or orders related to guardianship. The Divorce Act does not deal with these. The diagram above is a guide to which act you can use for your family law issues.

There are big differences in how the Divorce Act and the Family Law Act deal with some issues, especially parenting. For more information, see the fact sheet Parenting apart and the other fact sheets it links to.

Common law or case law

Common law or "case law" refers to cases that courts have decided in the past. Judges look at these cases to help them decide how to interpret the law.

There are many good resources for researching case law. Talk to family duty counsel to see if you need to do such research for your case. You can also get help from a librarian or pro bono lawyers. To research cases, see CanLII, a database of Canadian court decisions and laws. For information about how to use the CanLII database, see the fact sheet How can I research other family law cases? For a guide to help you find court records and transcripts, see the SFU library.

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