Overlapping Legal Issues and Family Law
|Welcome to page one of the Overlapping Legal Issues and Family Law chapter. Other chapter pages include: Naming and Changes of Name|
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 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 wills and estates law and what happens when people and property are located in different legal jurisdictions.
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 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.".
Making, changing, revoking, and enforcing wills are governed by the provincial Wills Estates and Succession Act ("WESA"). Section 37 sets out the basic requirements for a valid will:
37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more witnesses in the presence of the will-maker.
British Columbia courts have said that people are presumed to have a moral duty to provide for members of their immediate family. Under WESA, 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 WESA. 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, which is adjusted if the surviving spouse is not the other 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." of the deceased's surviving children, and the remainder being split with any surviving children.
If a person dies without a will, only people who qualify as the person's spouse and children can benefit from the provisions of WESA. If the dead person had been married or 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." which either 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." had terminated prior to the first person’s death, the former spouse can’t make 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. under the actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.".
If a person dies with a will which gives a benefit to a spouse, but either party had terminated the relationship prior to the will-maker’s death, the benefit is cancelled.
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 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." 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 lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." 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 supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. 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 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." 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 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." 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".
- Family Law Act
- Divorce Act
- Wills Estates and Succession Act
- Family Maintenance Enforcement Act
- Interjurisdictional Support Orders Act
|The above was last reviewed for legal accuracy by Gayle Raphanel, July 8, 2014.|
|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.|