Further Topics and Overlapping Legal Issues in Family Law

Problems like children's parenting arrangements, the payment of support, and the division of 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 deceased person's estate is distributed when there is a valid will, how a deceased person's estate is distributed when there isn't a valid will, and how certain relatives can challenge a deceased person's will. In family law, issues concerning a person's will most often arise when a couple have separated or are getting a divorce.

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. This is often referred to as a variation of a will.

A person who dies without leaving a will is said to die intestate. 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 spouse receiving a first, fixed share of the estate, which is adjusted if the surviving spouse is not the other parent of the deceased's surviving children, and the remainder being split with any surviving children (sections 20 to 23 of WESA).

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 relationship which either party had terminated prior to the first person’s death, the former spouse can’t make a claim under the act.

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 jurisdiction 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.

Children

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:

1. either spouse normally lives in this province, or
2. 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 changing the orders of another court. Our court will usually hear an application for an order different than the original order if:

1. the child normally lives in British Columbia, or
2. 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 hearing 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 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 respondent, 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 proceeding 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 ownership 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".

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Wills Estates and Succession Act
• Family Maintenance Enforcement Act
• Interjurisdictional Support Orders Act

This information applies to British Columbia, Canada. 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.