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Difference between revisions of "Conflict of Laws Issues in Family Law"
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Conflict of Laws Issues in Family Law (view source)
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===''Divorce Act'' orders=== | ===''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 | 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 | *either spouse normally lives in this province, or | ||
*both spouses agree that our courts should deal with the matter. | *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 | 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=== | ===Other orders made outside British Columbia=== | ||
When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k 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 | When a court order about children has been made under a provincial law, such as Alberta's ''[http://canlii.ca/t/81vc Family Law Act]'' or the ''[http://canlii.ca/t/8k 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: | 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: | ||
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===''Divorce Act'' orders=== | ===''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 | 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_to_Child_Support|Making Changes]] section of the chapter on [[Child Support]], under the heading "[[Making_Changes_to_Child_Support#Orders_made_outside_British_Columbia|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 | 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=== | ===Other orders made outside British Columbia=== | ||
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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. | 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 | 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 person against whom the claim is made, the ''respondent'', has made a claim for the division of property under the ''[[Family Law Act]]'', | ||