Difference between revisions of "Protecting Property and Debt in Family Law Matters"

*A person is considered to have accepted the authority of the court by responding to a court proceeding. Once an out-of-province Respondent files a Response to Family Claim in reply to the Claimant's Notice of Family Claim, he or she has accepted the jurisdiction of the court to deal with the litigation. This is called ''attorning'' to the jurisdiction.

*A court with ''in personam'' jurisdiction over a person can make orders requiring the person to do or not do things involving certain kinds of things located outside the province, such as assets like bank accounts, stocks, investment accounts and similar assets that aren't real estate. These assets are called ''movable assets''.

Under Division 6 of Part 5 of the ''Family Law Act'', the Supreme Court of British Columbia may, in certain circumstances, make orders respecting the ownership and division of property located outside British Columbia. If the court has the ability to make orders dividing property located outside the province, it may also make an order to preserve the property from being disposed of. Section 109(2)(b) says this:

The first stumbling block is to figure out whether the court can divide the out of province property, and that requires a difficult analysis under ss. 106, 107 and 108 of the act. Assuming the court can make such orders, the next step is to find out whether the order would "enforceable against a spouse" in the place where the property is located. If the answer to both questions is yes, then the court may make an order for the preservation of the foreign property.

Where a spouse has accepted the court's authority, the court can make a restraining order stopping the spouse from disposing of movable property located outside of British Columbia under s. 91 of the ''Family Law Act''. Movable property includes things like like bank accounts, stocks, investment accounts and similar assets that aren't real estate and can be taken or transferred from place to place.

Inside British Columbia, a s. 91 order will stop a spouse from dealing with everything that is family property or other "property at issue", including real property. Outside British Columbia, a s. 91 restraining order will only stop a spouse from dealing with movable assets.

The court can be reluctant to issue a s. 91 order that is intended to deal with assets located outside the province, since in most cases the courts of British Columbia cannot make orders about things located outside the province. In a 2002 case called ''[http://canlii.ca/t/50dw Boyd v. Boyd]'', 2001 BCCA 535, the Court of Appeal confirmed that the court can make ''in personam'' restraining orders which are effective against movable assets located outside the province.

If a s. 91 order is not available for some reason, a ''Mareva'' injunction will have the same effect, however ''Mareva'' injunctions are not granted automatically and you must satisfy the test described just above.