5. Legal Research

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 – thus, a reason to agree to things with your spouse / partner that are equitable for you, but the Court can’t grant is disputed. By knowing the law, you can ask for the relief you want in your court initiating document or reply. You can also develop a stronger, more convincing argument for your interim hearing or trial. It is important to know your legal rights – what you are entitled to under the law – so that you can develop a stronger, more convincing argument.

In Canada, the law includes two elements:

1. Legislation: written laws decided by government (e.g. the Divorce Act).
2. Case law: decisions made in other cases.

Finding the law

First, you will want to see what the legislation says about your legal rights. All federal and provincial/territorial legislation can be found online, usually through a government website – see also Section 17 Research. Search for a law using key words related to what you seek (e.g. divorce or child support).

Each piece of legislation has a table of contents to help you navigate its content. For example, if you go to the Table of Contents of an Act, you can see that it is divided into different parts, divisions and sections.

In most legislation there is a definition section under Part I. This is a great place to go when you are not exactly sure what a word means. Words that we use every day may have a different meaning under the law. For example, you might not call a 17 year old a child, but under the Divorce Act, they would be a child because it defines a child of the marriage as ‘a child of one or both spouses who is under the provincial age of majority, or older but unable to withdraw from the spouses’.

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 going to be hard to read. Lawyers are trained to read and understand the law. You do not 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.

Laws can be tricky to understand. Consider this example of property division.

Situation: You bought a house three years ago with your spouse (note that the law may be different in some jurisdictions if the parties are not married). Now that you are separating, you want to know how to divide the house.

Law: The law might say (in some jurisdictions):

Subject to an agreement or order...

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.

Break it down: To understand the law better, try to break it down into simple parts.

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 is important to know what is “family property” as defined in the Act you are using.

The Act might say:

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 as defined in the Act (e.g. the value of property held before the relationship began, a specific inheritance, etc.). Once you understand that part of the law, you will be able to determine what property is or 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.

Download the Worksheet

Complete this worksheet to help build your case. Under “Law”, write the laws that apply to your case (include the name of the Act, the section and summarize the law). Under “Facts”, write the facts in your case that relate directly to the law. In the last column, combine the facts and the law to show how the law applies to your situation. 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 argument or conclusion to the first two columns. When you apply the law to the facts, what argument can you make about your legal right to the house?

For example:

Now fill out the worksheet for yourself:

Legislation is not always clear. Legislation can be interpreted in different ways. Judges must decide how to interpret the law. Their decision becomes “case law”. Case law helps to guide judges on how to interpret the legislation and make decisions in a later case. Some cases become important because they set the standard for how legislation or facts are to be interpreted. The legal term for this is “precedent”. Legally, this is when a decision made by a judge, often from a higher court (e.g. court of appeal, or the Supreme Court), becomes the standard for how other judges make decisions related to a certain area of law.

For example: Imagine there is a law saying: You cannot ride your bike on major roads without a helmet. If the law does not define what “major” roads are, a judge must decide. Now, imagine that a previous judge in a higher court wrote a decision saying that: Roads with two or more lanes in each direction 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 two lane definition to make decisions.

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 with similar facts 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 can be 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 may be very persuasive and 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 party or their lawyer will use those cases. You need to be able to say why these cases do not apply in your situation (e.g. showing that the facts are different from – distinguished from your case). If you are finding lots of cases that do not support your legal argument, you should reconsider your position and think about settlement.

Choosing the right case

Before you start your research, you have to know what you are looking for. There are 4 key factors to look for in choosing the right case:

1. Similar facts
2. Best outcome
3. Court
4. Date

1. Similar facts: 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.
2. Best outcome: 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. Select cases where the outcomes of the cases are the same as the outcomes you want. However, you can’t ignore case decisions that are not in your favour. Think of ways that your case is different than (distinguished from) the less favourable case or why that case should not apply in this scenario.
3. Court: The next most important consideration is the location and level of the court. Decisions of higher-level Canadian courts are more influential than decisions made by lower level courts. Decisions from a higher-level court are binding on lower level courts. Decisions from the same or lower-level courts may be merely persuasive – they could help convince a judge to decide the same way, but the judge is not required to decide the same way.
   The Supreme Court of Canada is the highest court in Canada. Each jurisdiction (province or territory) in Canada has its own courts. Usually these courts are broken down into a court of appeal (the highest court in each province or territory), a superior trial court and then, provincial or territorial court. If you cannot find a decision from the Supreme Court of Canada or from a court in your province or territory you can search courts from other jurisdictions. Decisions from different provincial or territorial courts may be persuasive, but they are not binding on courts outside that province. Those decisions may or may not be followed.
   When searching for case law, select decisions from the courts in this order:
   1. Supreme Court of Canada.
   2. Courts from your province or territory, in order: appeal, superior trial court, provincial / territorial court.
   3. Courts from other provinces (in order of appeal, superior and provincial / territorial courts).
   
   
   4. Date: The date of the decision is the final consideration when selecting cases. Keep in mind that each of the other three points have 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, or cases which are referred to more in subsequent decisions.
      Also, make sure the decision has not been overturned on appeal. The process of checking to see if the case has been overturned on appeal is called “noting up”.  When a decision is overturned, it means that a higher 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 10 - 20 years old, unless it is the Supreme Court of Canada, and not overturned. The law may be out of date and the interpretation of the law may have been overturned.

    

   Case Study While not a family case, the follow example might be instructive. Imagine 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 is not clear. So, you research case law. You find 2 cases. Case 1: Alberta superior trial court says, “some means at least 3 trees”. Case 2: BC superior trial court says, “some means at least 1 tree”. Which case is best? The most important case will be the BC superior trial 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. If you had found a BC Court of Appeal or 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 follow this case.

   Where to find case law

   When you go about doing your research, be sure to use the resources within your community. courthouse libraries are often able to help you locate case law. There are also online databases where you can search for cases. A good, free online case law database is CanLII. See Section 17 Resources for more information.