Other Family Law Issues
Problems like children's parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time.", the payment of support, and the division of propertySomething which can be owned. See "chattels" and "real property." are the everyday issues that crop up when a relationship breaks down. There is a whole host of other legal issues that fall under the family law umbrella, and it's a big umbrella.
This chapter deals with the more common of these other issues, including adoption, family violence and protection orders, determining parentage, changing names, and more. This first section is a bit of a grab bag and takes a look at a selection of relatively common family law problems. It talks about issues affecting the LGBTQ communities, wills and estates law, immigration law, parental support, and what happens when people and property are located in different legal jurisdictions.
Not too long ago, this wiki had an entire chapter about the particular issues affecting those in same-sex relationships. That chapter, however, is no longer necessary. For the last 30 years or so, there has been a steady erosion of legislated discrimination between opposite- and same-sex relationships. While gays and lesbians may have to deal with homophobia and intolerance in their day-to-day lives, at least the discrimination that used to exist because of legislationAn act; a statute; a written law made by a government. See "regulations." has been on the wane. From the Little Sisters decision on censorship to Egan v. Canada,  2 SCR 513 on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation and, after some initial resistance, the governments of Canada have followed suit.
The realm of family law has proven no exception. To quote barbara findlay QCThe abbreviation of "Queen's Counsel." A QC is an honor normally granted to lawyers of particular excellence, although they may be granted for other reasons as well, such as service to the legal community or to the public., a tireless advocateA lawyer or a person other than a lawyer who helps clients with legal issues; to advocate a position on behalf of a client. for queer rights, from a speech to the Canadian Bar Association British Columbia a number of years ago:
"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."
She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal." for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial Adoption Act is one of the few in Canada that permit adoptionIn family law, the act or process of taking another person's natural child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent." by same-sex couples.
Gays and lesbians are just as entitled to pursue claims relating to the care of children, child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses., spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., and the division of property as straight people are. Sexual orientation plays no part in the division of family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property.", nor is it a factor in determining issues relating to children or support.
How does family law intersect with gay and lesbian relationships? In every way. There is no reliefIn law, an order sought by a party to a court proceeding or application, usually as described in his or her pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings." known to family law of which straight couples can avail themselves that same-sex couples cannot.
As a result of the 2005 federal Civil Marriage Act, same-sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the Marriage & Married Spouses section of the Family Relationships chapter for more information about the capacity to marry, valid marriages and invalid marriages.
It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.". However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same-sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.
Whether the battle over a child is between two parents of the same gender or between parents of opposite genders, the legal test that the parents and the court should consider is the same: what arrangements are in the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."'s best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:
Anger v. Anger, 1998 CanLII 4490 (BCSC):
Mother sought an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.
Murphy v. Laurence and Rogers, Ontario Superior Court, 2002:
Applications by biological mother and mother's lesbian partner for custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.", partner exercised liberal accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custodyA term used by the ''Divorce Act'' when both spouses have custody of a child, giving both the right to make parenting decisions concerning the child's health, welfare and upbringing but not necessarily requiring or implying that the spouses have equal or near-equal amounts of time with the child. See “access" and "custody." with primary residenceThe geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction." of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.
"The best interests of [the child] are, of course, what will govern any decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." relating to custody in this matter. In this fundamental principle, same-sex parents seeking custody are no different than opposite-sex parents seeking custody."
Bubis v. Jones, 2000 CanLII 22571 (ONSC):
Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same-sex preference of parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.
"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."
"There is no evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."
Whether you are straight, gay, lesbian, bisexual, or something in between, if you qualify as a parent for the purposes of the Family Law Act, or the child qualifies as a child of the marriage for the purposes of the Divorce Act, child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the Child Support Guidelines unless the parent paying support, the payor, fits into one of a very narrow range of exceptions:
- payment of support in the usual amount would be too much and cause "undue hardshipA term used by the Child Support Guidelines to describe circumstances when payment of the table amount of child support would cause financial difficulty for the payor or the recipient, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount."" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),
- the payor is responsible for the care and control of the child for more than 40% of the child's time,
- the child is 19 or older,
- the payor earns more than $150,000 per year, and payment of the table amountThe amount of child support payable under the Child Support Guidelines tables. See "Child Support Guidelines." would result in an unfair windfall to the recipient, or
- other persons are also under a legal obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." to care for the child.
The only one of these exceptions that has any special relevance to same-sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." to the relationship, that the other parent will also be obliged to contribute to the support of the child. In Murphy v. Laurence and Rogers, the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.
The Divorce Act no longer requires spouses to be of opposite genders to qualify for a divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." order. Oh happy day.
Issues affecting transgendered and transsexual people
To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders" and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgendered and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.
If you have a family law problem and your orientation, gender or identity becomes an issue, contact a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.
As a result of the 2005 federal Civil Marriage Act, gender is irrelevant in determining the ability of a couple to marry.
Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community.
It can be very difficult for people, including ex-partners, to understand trans issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children.
On the bright side, the single reported case I was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In Forrester v. Saliba, 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make. which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:
"I indicated at the beginning of the trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." to both parties and their counselA lawyer; the advice given by a lawyer to his or her client. that the [father's] transsexuality, in itself, without further evidence, would not constitute a materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."
"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."
The mother's application was dismissed.
Trans issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparentThe spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and the care and control of a child under both the ''Divorce Act'' and the ''Family Law Act''. See "parent" and "spouse." within the meaning of the applicable legislation, child support will be payable or receivable. End of story.
The simple fact of financial dependence, which would ordinarily have to be established to support a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.
The Divorce Act no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.
Wills and estates issues
Wills and estates refers to the area of law that deals with the drafting and interpretation of wills, how a dead person's estateThe personal property and real property that a person owns or in which he or she has an interest, usually in connection with the prospect or event of the person's death. is distributed when there is a valid will, how a dead person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a dead person's will. In family law, issues concerning a person's will usually only come up when a couple have separated or are getting a divorce.
Making, changing, revoking, and enforcing wills are governed by the provincial Wills Act. Sections 3 and 4 set out the basic requirements for a valid will:
3 A will is valid only if it is in writing.
4 Subject to section 5, a will is not valid unless
(a) at its end it is signed by the testatorIn estate law, a person who has made a will. The feminine form of this word is "testatrix." See "estate" and "will." or signed in the testator's name by some other person in the testator's presence and by the testator's direction,
(b) the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and
(c) 2 or more of the attesting witnesses subscribe the will in the presence of the testator.
The provincial Wills Variation Act says that people are presumed to have a moral duty to provide for members of their immediate family. Under this actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.", spouses and children who have not been provided for in a will are able to challenge the will and ask the court that they be included and receive a share, or a bigger share, of the dead person's estate.
A person who dies without leaving a will is said to die intestateDying without a will. In such circumstances, the distribution of the dead person’s estate is governed by the ''Estate Administration Act''. See also "estate," "inheritance" and "will.". If a person dies intestate, their assets are dealt with according to the terms of the provincial Estate Administration Act. This law requires a person's estate to be distributed in a certain way, with the surviving spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." receiving a first, fixed share of the estate, and the remainder being split with any surviving children.
The law treats married spouses differently than unmarried couples, and it's important to be aware of the distinctions.
The effect of marriage
Under s. 15 of the Wills Act, a will is considered to be cancelled, or revoked, once a person marries. Unless you make a new will after your marriage, you will be considered not to have any will at all, and if you die your estate will be distributed under the Estate Administration Act.
The effect of separation and divorce
Although divorce doesn't revoke a will, divorce cancels those parts of a will which:
- name the dead person's former spouse to act as the executorThe person responsible for carrying out the instructions in a will and wrapping up a deceased person's estate and debts. The lovely feminine form of the word is "executrix," though the masculine form is commonly applied to executrices. See "estate," "testator," and "will." of his or her estate, or
- make the former spouse a beneficiaryA person for whom a trustee holds a trust; the recipient or intended recipient of property given in a will. See "heir," and "trust." under the will.
If a person dies intestate, only people who qualify as the person's spouse can benefit from the provisions of the Estate Administration Act. If the dead person has divorced or if his or her marriage has been annulled, a former spouse can't make a claim under the act.
If the dead person has only separated from his or her spouse, a surviving spouse is still a spouse who may be entitled to inherit under this act, even if an actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. for divorce has started or even if the parties have been separated for a long time. In the case of a couple who have been separated for more than a year before the death, however, the surviving spouse must apply to court to share in the estate.
A person can make a will making anyone a beneficiary of his or her estate. The nature of the person's relationship with a beneficiary only becomes important if a beneficiary, or a person who thinks he or she ought to be beneficiary, wants to make a claim against the person's estate.
The Estate Administration Act, the law that applies when someone dies without a will, requires that a certain amount of a dead person's estate go to people who qualify as a spouse. Spouse is defined as including "a common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts. The system of justice used in non-criminal cases in all provinces and territories except Quebec. spouse"; common law spouse is defined as:
(a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or
(b) is living with another person in a marriage-like relationshipIn family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses without marrying. See "cohabitation," "marriage" and "spouse.", and has lived in that relationship for a period of at least 2 years;
The Wills Variation Act defines spouse as a person who:
(a) is married to another person, or
(b) is living and cohabiting with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, and has lived and cohabited in that relationship for a period of at least 2 years.
What's interesting about the Estate Administration Act and the Wills Variation Act is that they both require an unmarried spouses to be living with the person who has died at the time of his or her death. For married spouses, it's the fact of the parties' marriage that counts, not whether they are still living together.
If you have separated and don't want your spouse to make a claim to your property after you die, you should change your will. If you are married and have separated, you should include wording in the new will to the effect that the new will is being made with your divorce in mind and stating that you do not wish to provide for your spouse as a result. You should then prepare another new will after the order for your divorce is made and is in effect.
If you are in an unmarried relationship, you should simply identify your former spouse as your former unmarried spouseSomeone who is a spouse by the operation of a statute. Under the ''Family Law Act'', unmarried spouses are people who have lived together in a marriage-like relationship for at least two years, or, for all purposes of the act other than the division of property or debt, who have lived together for less than two years but have had a child together. See "marriage-like relationship," "marriage" and "married spouse.", state that you do not wish to provide for him or her in your will, and briefly explain why you do not wish to provide for him or her.
In either caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", it's a good idea to speak to a lawyer who specializes in wills and estates issues if you think you need to change your will.
The old Family Relations Act used to allow parents to sue their adult children for support. That part of the Family Relations Act was repealed on 24 November 2011 and is not carried forward in the new Family Law Act, and as result claims for parental support may no longer be brought in British Columbia.
The conflict of laws
The conflict of laws refers to the problems that arise when the courts and laws of two or more places may apply to the same problem. Problems with the conflict of laws usually arise in a family law context when:
- spouses have property in different provinces or countries,
- the courts of one jurisdictionWith respect to judges, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution." have made an order and one or both of the parties have moved to a different jurisdiction, or
- the parties made a family agreement in one jurisdiction and have since moved to a new jurisdiction.
The law on this subject can be extremely complex. If you are involved in a family law problem involving the conflict of laws, you should seriously consider retaining a lawyer to help you.
Different rules apply when orders about the care of children are made outside of British Columbia under the federal Divorce Act, outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.
Divorce Act orders
When a court order about children has been made under the Divorce Act, a spouse who moves to a different province can apply to change that order in the new province under s. 5 of the act. The courts of British Columbia will hear an application for an order different than the original order as long as:
- either spouse normally lives in this province, or
- both spouses agree that our courts should deal with the matter.
Since the Divorce Act applies to the whole of Canada, Divorce Act orders have effect throughout Canada. An order made under the Divorce Act may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.
Other orders made outside British Columbia
When a court order about children has been made under a provincial law, such as Alberta's Family Law Act or the Children's Law Reform Act of Ontario, or the laws of another country altogether, the order can be recognized by the courts of British Columbia under s. 75 of our Family Law Act. A foreign order that has been recognized will be treated as an order of the British Columbia courts for enforcement purposes.
Under Division 7 of Part 4 of the Family Law Act, the courts of British Columbia can also change orders about children that were made under the laws of a different province or territory, or under the laws of another country. Our courts will usually be very cautious in meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:
- the child normally lives in British Columbia, or
- the child is physically present in the province but will be at serious risk unless the original order is changed.
Child support and spousal support
Different rules apply when orders about support are made outside of British Columbia under the federal Divorce Act, outside of British Columbia under the law of another province or territory, and outside of Canada under another law altogether.
Divorce Act orders
When a court order about support has been made under the Divorce Act, a spouse who moves to a different province can apply to change that order in the new province under s. 18 of the act. The order that the spouse gets, however, will only be a provisional order which has no immediate effect. The Attorney General is required to send the provisional order to the court that made the order, and that court will have a confirmation hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." under s. 19. If that court confirms the provisional order, the order will be changed. There's more information about this in the Making Changes section of the chapter on Child Support, under the heading "Orders made outside British Columbia."
An order for child support or spousal support made under the Divorce Act may be registered in any court in Canada under s. 20(3) of the act, and will be treated as an order of the court in which it is registered for enforcement purposes.
Other orders made outside British Columbia
Where a support order was made under the law of another province or territory, the order can be registered in the courts of British Columbia under the provincial Interjurisdictional Support Orders Act, and can be enforced as if the order were an order of our courts by the person to whom the payments are owed, the recipient, under the Family Law Act, or by the recipient and the Family Maintenance Enforcement Program under the Family Maintenance Enforcement Act.
The Interjurisdictional Support Orders Act also allows for someone in British Columbia to start a process that could result in the order being changed, either by the court that made the original order or by a new court in the jurisdiction where the other parent now lives. In addition to Canada's other provinces and territories, the Interjurisdictional Support Orders Act also applies to the orders of some other countries, including the United Kingdom, the United States, Australia and New Zealand.
Property and debt
The Family Law Act is the only law in British Columbia that deals with the division of family property and family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship and after separation, if used to maintain family property. Both spouses are presumed to be equally liable for family debt. between married and unmarried spouses, and, at Division 6 of Part 5, the act makes special provisions for dealing with property located outside the province. These provisions are extraordinarily complicated and very difficult to understand. You will almost certainly need to speak to a lawyer to figure them out.
Under s. 106 of the Family Law Act, where another court can make an order about the same parties and the same property, the court here must first decide whether it should make any orders at all. The court may decide to deal with a property claim if:
- the person against whom the claim is made, the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim.", has made a claim for the division of property under the Family Law Act,
- the parties agree that the court should deal with the claim,
- either party was "habitually resident" in the province when the court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. started, or
- there is a "real and substantial connection" between the province and the facts on which the property claim is based, because the property is located in the province, the parties’ most recent common habitual residence was in the province, or a court proceeding under the Divorce Act has been started here.
If the court decides to deal with the claim, the court may make orders about property and debt located outside the province by:
- dividing property here to take into account the value of the property outside the province,
- making orders about respecting the care, management, or use of the property outside the province, and
- making orders about ownershipA legal right to have a thing that is enforceable in court. See "possession." of the property outside the province.
More information about how the Family Law Act deals with property outside of British Columbia is available in the Dividing Property & Debt section of the chapter on Property & Debt, under the heading "Determining jurisdiction".
Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.
Permanent resident spouses
Under new rules that were introduced in October 2012, sponsored spouses are under a conditional permanent residency status for the first two years. According to the press release from Citizenship and Immigration Canada:
"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."
In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press release:
"The regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say as to what sort of regulations are imposed or input into the effect of those regulations. See "act." include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."
However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.
Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.
If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.
If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the Divorce Act and the Family Law Act. A 2004 case of the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.", Aujla v. Aujla, 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.
If you are a sponsor and your relationship has ended, contact an immigration lawyer right away to find out exactly what your rights and obligations are.
- Charter of Rights and Freedoms
- Family Law Act
- Divorce Act
- Estate Administration Act
- Wills Variation Act
- Wills Act
- Civil Marriage Act
- Family Maintenance Enforcement Act
- Adoption Act
- Interjurisdictional Support Orders Act
|The above was last reviewed for legal accuracy by JP Boyd, May 20, 2013.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|