Difference between revisions of "Divorce (3:IV)"

{{REVIEWED LSLAP | date= September 29, 2020}}

The Supreme Court of British Columbia has jurisdiction over both the ''DA'' and the ''FLA''. Because all divorce claims must be heard under the ''DA'', the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court  over guardianship, parenting arrangements and support for children (including commonlaw couples) while division of property is under  exclusive jurisdiction of the Supreme Court. If a Supreme Court order for custody, access, or support is made under the ''DA'', that order  supersedes any existing ''FLA'' order. However, given the new ''FLA'' and change of terms under the provincial legislation (custody, guardianship and access to guardianship, parenting arrangements and contract), there is likely to be litigation regarding which act applies and when.  

Note that as of March 1, 2021, the term 'custody' under the ''DA'' is repealed, and the term 'parenting time' will be used in its place.  

Effective March 1, 2021, the updated s 3(2) will remove the 30-day limitation on discontinuing a first action.  

* inheritances to a spouse;

* gifts to a spouse from a third party;

* a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for

# loss to both spouses, or

# lost income of a spouse;

* money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for

# loss to both spouses, or

# lost income of a spouse;

* property referred to in any of the paragraphs above that is held in trust for the benefit of a spouse;

* a spouse's beneficial interest in property held in a discretionary trust

# to which the spouse did not contribute, and

# that is settled by a person other than the spouse;

* property derived from property or the disposition of property referred to in any of the above paragraphs.

*one of the former spouses is habitually resident in the province; or  

*both former spouses accept the jurisdiction of the Court.  

The amended ''DA'' has repealed s 15 and updated the definition of “spouse” under s 2(1) to reflect the sections under which the meaning of “spouse” is inclusive of “former spouse.” This change will come into effect March 1, 2021.  

The new ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s 4 ''FLA''). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 1-8), family justice counsellors (section 1-10), and parenting coordinators (Division 3).

In cases where relief other than a simple divorce is sought in the Supreme Court, Rule 7-1 of the Supreme Court Family Rules (British Columbia) requires that a judicial case conference (JCC) be held before a party to a contested family law proceeding delivers a notice of application or affidavit in support of an interlocutory application to the other party. The purpose of a JCC is to help the parties to come to an agreement on some or all of the matters at issue, to identify the issues that are in dispute and those that are not, explore alternatives to litigation, to schedule disclosure, discoveries, the exchange of documents, and to schedule interim applications and the trial date. JCCs may be heard by either judges or masters and are set for approximately 1-1/2 hours. Parties can set more than one Judicial Case Conference.

Special concerns arise in cases involving First Nation People registered under the [http://canlii.ca/t/7vhk ''Indian Act'', RSC 1996, c 23]. The ''Indian Act'' sets out guidelines for and definitions of Aboriginal people, and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home as the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse  in  possession  of  the  reserve  land  pay  cash  compensation  to  the  other  spouse  (''George v George'' (1997), 30 BCLR (3d) 107). Keep in mind that most provincial laws apply to Aboriginal people and reserve land, unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for custody; see e.g. [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1699/index.do ''D.H. v H.M.'', [1999<nowiki>]</nowiki> SCJ No 22], and see [http://canlii.ca/t/51z8 ''Van de Perre v Edwards'', [2001<nowiki>]</nowiki> SCJ No 60].  

*(b) Family Law Arbitration. See http://www.familylaw.lss.bc.ca/help/who_Arbitrators.php for more information  

*(e) Family Case Conferences pursuant to Rule 7(1) of the ''Provincial Court (Family) Rules''  

*negotiate the cost of legal services in advance, so they do not come as a surprise;  

*collect all necessary documentation rather than pay the lawyer to do it;  

*call the lawyer only when imparting necessary information (every phone call costs money);  

*use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate;  

*ask for regular or scheduled billing to monitor escalating legal costs;  

*carefully read all correspondence sent by the lawyer; and  

*treat the lawyer as a professional.