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Difference between revisions of "Dividing Property and Debt in Family Law Matters"
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Dividing Property and Debt in Family Law Matters (view source)
Revision as of 03:45, 29 March 2013
, 03:45, 29 March 2013→Determining Jurisdiction
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===Determining Jurisdiction=== | ===Determining Jurisdiction=== | ||
A spouse who is married or has lived with his or her spouse in a marriage-like relationship can start a court proceeding in British Columbia and ask for orders about the division of property and debt. There's no rule | A spouse who is married or has lived with his or her spouse in a marriage-like relationship can start a court proceeding in British Columbia and ask for orders about the division of property and debt. There's no rule which says that a person who starts a court proceeding in British Columbia must live in British Columbia, but there must be some sort of connection with this province and the court proceeding. Maybe the other spouse lives here. Maybe the property or debt is here. Maybe British Columbia is where the spouses lived for most of their relationship. Either way, there must be some connection between the court proceeding and British Columbia. | ||
However, where another court might be able to make orders about the same people and the same property, the court here must decide: | However, where another court might be able to make orders about the same people and the same property, the court here must decide: | ||
#if | #if it should make orders dividing property and debt or leave those issues for the other court; and, | ||
#if it should make orders, the law it should apply in dividing the property and debt. | |||
====Determining Whether the Court Should Make Orders==== | |||
Section 106(2) says when the court here can make an order under Part 5: | |||
<blockquote><tt>(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court's jurisdiction under this Part;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.</tt></blockquote></blockquote> | |||
In other words, the court here can make an order if: | |||
#the claim about property is a counterclaim to the court proceeding; | |||
#both spouses agree that the court should make orders about property and debt; | |||
#either spouse normally lived here when the proceeding started; or, | |||
#if there is a "real and substantial connection" between this province and the proceeding. | |||
Section 106(3) helps to explain what "real and substantial connection" means: | |||
<blockquote><tt>(3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) property that is the subject of the proceeding is located in British Columbia;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) the most recent common habitual residence of the spouses was in British Columbia;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) a notice of family claim with respect to the spouses has been issued under the ''Divorce Act'' (Canada) in British Columbia.</tt></blockquote></blockquote> | |||
In other words, there is a "real and substantial connection" between this province and a court proceeding, which may let the court here make orders about the division of property and debt, if: | |||
#the property is here; | |||
#the spouses last lived together here; or, | |||
#the court proceeding includes a claim under the ''Divorce Act''. | |||
As if this wasn't complicated enough, even if the court can make an order because one of the s. 106(2) conditions are met, under s. 106(4) the court refuse to make orders for the division of property and debt. Section 106(5) says what the court must take into account in deciding to refuse to make orders: | |||
<blockquote><tt>(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following:</tt></blockquote> | |||
<blockquote><blockquote><tt>(a) the interests of the spouses;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(b) the relative convenience and expense for the spouses and their witnesses;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(e) the extent to which an order respecting property or debt</tt></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(i) made in another jurisdiction would be enforceable in British Columbia, and</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><blockquote><tt>(ii) made in British Columbia would be enforceable in another jurisdiction;</tt></blockquote></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(f) the fair and efficient working of the Canadian legal system as a whole;</tt></blockquote></blockquote> | |||
<blockquote><blockquote><tt>(g) any other circumstances the court considers relevant.</tt></blockquote></blockquote> | |||
====Determining the Law to Apply When the Court May Make Orders==== | |||
===Property and Debt in British Columbia=== | ===Property and Debt in British Columbia=== | ||
