Conflict of Laws Issues in Family Law
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.
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 section 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 section 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 section 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:
- 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 section 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 section 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 section 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. Once this is done, that newly registered order can be enforced as if it was a BC order by the person to whom the payments are owed, the recipient, under the Family Law Act, or by the Family Maintenance Enforcement Program under the Family Maintenance Enforcement Act.
The Interjurisdictional Support Orders Act also allows for someone in BC 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. See the Ministry of Attorney General's website for Interjurisdictional Support Services (www.isoforms.bc.ca) for more on this process. 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, Hong Kong, Germany, Australia, Zimbabwe, and several others listed in the Interjurisdictional Support Orders Regulation.
Property and debt
The Family Law Act is currently the only law in British Columbia that deals with the division of family property and family debt between married and unmarried spouses. Division 6 of Part 5 of the act has 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 section 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 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 section on Dividing Property & Debt under the chapter on Property & Debt, under the heading "Determining jurisdiction".
- Family Law Act
- Divorce Act
- Family Maintenance Enforcement Act
- Interjurisdictional Support Orders Act
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Bob Mostar and Mark Norton, June 24, 2019.|
|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.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court," and "Supreme Court of Canada."
A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
Something which can be owned. See "chattels" and "real property."
With respect to courts, 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 agency. See “constitution."
A 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."
A person licensed to practice law in a particular jurisdiction. See "barrister and solicitor."
Under 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."
Intentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."
A payment made by one spouse, the payor, to the other spouse, the recipient, to help with their day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.
In 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."
Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.
In 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."
A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.
A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property."
A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.
The assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.
The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."
In 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."
A 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.
The 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."
A legal right to have and use a thing that is enforceable in court. See "possession."