Protecting Property and Debt in Family Law Matters: Difference between revisions
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Protecting Property and Debt in Family Law Matters (view source)
Revision as of 22:49, 27 August 2024
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<blockquote>This would reapportion the value of the property the court can deal with (the family home) to compensate Ivan for the interest he ought to have in the property the court can't deal with (the farm). Zygmunt is still left with half of the family property, as he remains the sole owner of the farm, $50,000, and gets a $175,000 share of the family home, for a total property interest of $225,000.</blockquote> | <blockquote>This would reapportion the value of the property the court can deal with (the family home) to compensate Ivan for the interest he ought to have in the property the court can't deal with (the farm). Zygmunt is still left with half of the family property, as he remains the sole owner of the farm, $50,000, and gets a $175,000 share of the family home, for a total property interest of $225,000.</blockquote> | ||
In truly exceptional circumstances, it is possible to get an order stopping someone from disposing of real property located outside the province with something called a "''Mareva'' injunction." A Supreme Court judge would not rely on the authority of the ''Family Law Act'' to do this, and instead rely on the broader authority of ''inherent jurisdiction'' that all judges of Canada's superior courts possess. A ''Mareva'' injunction will stop someone from selling or encumbering assets even outside of British Columbia, providing that certain conditions are met. (The name of this order comes from an old English case in which the relief was first granted, ''[https://perma.cc/WK3R-48XF Mareva Compania Naviera S.A. v. International Bulkcarriers S.A.]'', [1980] 1 All E.R. 213). To qualify for this order, you must: | In truly exceptional circumstances, it is possible to get an order stopping someone from disposing of real property located outside the province with something called a "''Mareva'' injunction." A Supreme Court judge would not rely on the authority of the ''Family Law Act'' to do this, and instead rely on section 39 of the ''[https://canlii.ca/t/8459 Law and Equity Act]'' and the broader authority of ''inherent jurisdiction'' that all judges of Canada's superior courts possess. A ''Mareva'' injunction will stop someone from selling or encumbering assets even outside of British Columbia, providing that certain conditions are met. (The name of this order comes from an old English case in which the relief was first granted, ''[https://perma.cc/WK3R-48XF Mareva Compania Naviera S.A. v. International Bulkcarriers S.A.]'', [1980] 1 All E.R. 213). To qualify for this order, you must: | ||
#show a strong case for your entitlement to a share of those assets, | #show a strong case for your entitlement to a share of those assets, | ||
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Where a spouse has attorned, the court can make a restraining order stopping the spouse from disposing of movable property located outside of British Columbia under section 91 of the ''Family Law Act''. Inside British Columbia, a section 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 section 91 restraining order will only stop a spouse from dealing with movable assets. | Where a spouse has attorned, the court can make a restraining order stopping the spouse from disposing of movable property located outside of British Columbia under section 91 of the ''Family Law Act''. Inside British Columbia, a section 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 section 91 restraining order will only stop a spouse from dealing with movable assets. | ||
The court can be reluctant to issue a section 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 | The court can be reluctant to issue a section 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 2001 case called ''[https://canlii.ca/t/50dw Boyd v. Boyd]'', 2001 BCCA 535, the Court of Appeal confirmed that the court can make ''in personam'' restraining orders that are effective against movable assets located outside the province. | ||
It is important to remember that a section 91 order is an ''in personam order'', which means that it is only effective against the person to whom the order is being made. Accordingly, if your spouse has a significant amount of money in a bank account, investment account, or similar type of savings vehicle, and you are concerned that your spouse will transfer the monies somewhere else even if there is an order in place, then you should ensure that the financial institution where the accounts are being held are named in the notice of application, the financial institution is served with your application, and that you seek specific relief vis-à-vis the financial institution. Otherwise, the financial institution does not have any legal obligation to prevent your spouse from transferring assets out of the financial institution. | It is important to remember that a section 91 order is an ''in personam order'', which means that it is only effective against the person to whom the order is being made. Accordingly, if your spouse has a significant amount of money in a bank account, investment account, or similar type of savings vehicle, and you are concerned that your spouse will transfer the monies somewhere else even if there is an order in place, then you should ensure that the financial institution where the accounts are being held are named in the notice of application, the financial institution is served with your application, and that you seek specific relief vis-à-vis the financial institution. Otherwise, the financial institution does not have any legal obligation to prevent your spouse from transferring assets out of the financial institution. | ||