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

Jump to navigation Jump to search
no edit summary
Line 1: Line 1:
{{JP Boyd on Family Law TOC|expanded = assets}}
{{JP Boyd on Family Law TOC|expanded = assets}}


{{OKSUBSTANTIVE}}
{{OKCOPY}}


It's sometimes necessary to take steps to protect family property, family debt and excluded property until a final agreement or order dividing assets is made. Failing to take these steps can sometimes result in property being sold, lessened in value, used as collateral for a loan, moved out of province or being seized by a trustee in bankruptcy or a creditor. Most of the time it only becomes important to protect property after a couple has separated.
It's sometimes necessary to take steps to protect family property, family debt and excluded property until a final agreement or order dividing assets is made. Failing to take these steps can sometimes result in property being sold, lessened in value, used as collateral for a loan, moved out of province or being seized by a trustee in bankruptcy or a creditor. Most of the time it only becomes important to protect property after a couple has separated.
Line 7: Line 7:
This page will review some important initial steps that should be taken to secure family property and family debt, the restraining orders that can stop family property from being disposed of, the problems posed by third party claims such as debts and bankruptcy, and how assets located outside British Columbia can be protected.
This page will review some important initial steps that should be taken to secure family property and family debt, the restraining orders that can stop family property from being disposed of, the problems posed by third party claims such as debts and bankruptcy, and how assets located outside British Columbia can be protected.


==Initial Steps==
==Initial steps==


It may seem at bit neurotic to be worrying about assets when your relationship is falling apart, but this is precisely the time to be concerned. It certainly isn't the case that every spouse is busy squirrelling money away in Switzerland or Antigua, or hatching plans to transfer the title of the family home to a loan shark from Las Vegas, but there are certain steps you should take regardless of how well you think you know your spouse. There is, as they say, no sense in bolting the barn door after the horses are gone. It's fairly reasonable to take steps to protect your own interests and in most cases you probably should.
It may seem at bit neurotic to be worrying about assets when your relationship is falling apart, but this is precisely the time to be concerned. It certainly isn't the case that every spouse is busy squirrelling money away in Switzerland or Antigua, or hatching plans to transfer the title of the family home to a loan shark from Las Vegas, but there are certain steps you should take regardless of how well you think you know your spouse. There is, as they say, no sense in bolting the barn door after the horses are gone. It's fairly reasonable to take steps to protect your own interests and in most cases you probably should.


===Take Stock of Property and Debt===
===Take stock of property and debt===


Firstly, you might want to take a careful, but not too obvious, tally of what each of you own and owe. This might be difficult if you and your spouse keep separate bank accounts and maintain your own investments, but make your best efforts. A list of the bank accounts, RRSP and investment accounts, cars, properties, loans, lines of credit and credit cards you have may prove to be extremely useful. Even if you can't get all the account details, a record of the names of the financial institutions that are sending your spouse mail can be extremely useful.  
Firstly, you might want to take a careful, but not too obvious, tally of what each of you own and owe. This might be difficult if you and your spouse keep separate bank accounts and maintain your own investments, but make your best efforts. A list of the bank accounts, RRSP and investment accounts, cars, properties, loans, lines of credit and credit cards you have may prove to be extremely useful. Even if you can't get all the account details, a record of the names of the financial institutions that are sending your spouse mail can be extremely useful.  


===Make it Clear that You've Separated===
===Make it clear that you've separated===


Once you've decided that your relationship can't continue, and you're sure that it can't continue, you need to separate. This doesn't mean that you and your spouse need to move into separate homes, but you need to announce your decision and you should probably do it in writing so that you have a record of the date of separation.
Once you've decided that your relationship can't continue, and you're sure that it can't continue, you need to separate. This doesn't mean that you and your spouse need to move into separate homes, but you need to announce your decision and you should probably do it in writing so that you have a record of the date of separation.


Under s. 81(b) of the provincial ''Family Law Act'', when separation happens each spouse takes a one-half in all family property as tenants in common, regardless of how the property was owned before separation, and becomes responsible for one-half of all family debt. This can be critical to protect your share of the family property from creditors, your spouse's bankruptcy or court orders made in other court proceedings.  
Under s. 81(b) of the provincial ''[[Family Law Act]]'', when separation happens each spouse takes a one-half in all family property as tenants in common, regardless of how the property was owned before separation, and becomes responsible for one-half of all family debt. This can be critical to protect your share of the family property from creditors, your spouse's bankruptcy or court orders made in other court proceedings.  


There are only a few times when a separation is a bad idea, usually when the effect of separation will limit a claim to one-half of the family property when there's a good chance that it might be more. Say, for example, that a spouse is in poor health and dying when the parties separate. The effect of separation may mean that a surviving spouse will get no more than half of the deceased spouse's estate when the spouse might have received more than half as surviving joint tenant.
There are only a few times when a separation is a bad idea, usually when the effect of separation will limit a claim to one-half of the family property when there's a good chance that it might be more. Say, for example, that a spouse is in poor health and dying when the parties separate. The effect of separation may mean that a surviving spouse will get no more than half of the deceased spouse's estate when the spouse might have received more than half as surviving joint tenant.
Line 25: Line 25:
While it's always a good idea to consult with a lawyer if you have a family law problem, be especially sure to do so if you're not certain whether separating would be helpful or harmful.
While it's always a good idea to consult with a lawyer if you have a family law problem, be especially sure to do so if you're not certain whether separating would be helpful or harmful.


===Register Your Interest in Property===
===Register your interest in property===


Registering an interest in real property will stop the property from being sold and may prevent the property from being borrowed against. The two most common ways to do this are by filing a Certificate of Pending Litigation under the ''Land Title Act'' or an entry under the ''Land (Spouse Protection) Act'' with the Land Title and Survey Authority.
Registering an interest in real property will stop the property from being sold and may prevent the property from being borrowed against. The two most common ways to do this are by filing a Certificate of Pending Litigation under the ''[http://canlii.ca/t/8456 Land Title Act]'' or an entry under the ''[http://canlii.ca/t/8451 Land (Spouse Protection) Act]'' with the Land Title and Survey Authority.


====Entries under the ''Land (Spouse Protection) Act''====
====Entries under the ''Land (Spouse Protection) Act''====
Line 43: Line 43:
You can file your CPL at the same time as you file your Notice of Family Claim or Counterclaim. The registry will stamp your CPL and you must take the stamped CPL and file it in the Land Title and Survey Authority together with a copy of your Notice of Family Claim or Counterclaim.
You can file your CPL at the same time as you file your Notice of Family Claim or Counterclaim. The registry will stamp your CPL and you must take the stamped CPL and file it in the Land Title and Survey Authority together with a copy of your Notice of Family Claim or Counterclaim.


====Notices and Financing Statements under the ''Family Law Act''====
====Notices and financing statements under the ''Family Law Act''====


Spouses who have made a cohabitation agreement, a marriage agreement or a separation agreement dealing with real property can file a ''notice'' of the agreement against the title of the property with the Land Title and Survey Authority under s. 99 of the ''Family Law Act''. A notice can be filed whether court proceedings have started or not, and will prevent the other spouse from transferring, selling, leasing or otherwise dealing with the property without the voluntary cancellation of the notice or a court order.
Spouses who have made a cohabitation agreement, a marriage agreement or a separation agreement dealing with real property can file a ''notice'' of the agreement against the title of the property with the Land Title and Survey Authority under s. 99 of the ''Family Law Act''. A notice can be filed whether court proceedings have started or not, and will prevent the other spouse from transferring, selling, leasing or otherwise dealing with the property without the voluntary cancellation of the notice or a court order.
Line 49: Line 49:
A ''financing statement'' can be filed in the personal property registry against a manufactured home under s. 100. This will stop the manufactured home from being transferred, and any new debts registered against the manufactured home will come in second to the spouse's interest under the financing statement.
A ''financing statement'' can be filed in the personal property registry against a manufactured home under s. 100. This will stop the manufactured home from being transferred, and any new debts registered against the manufactured home will come in second to the spouse's interest under the financing statement.


===Make Sure the Rent Gets Paid and the Lights Stay On===
===Make sure the rent gets paid and the lights stay on===


Section 226 of the ''Family Law Act'' allows the Provincial Court and the Supreme Court to make a conduct order that can require a party to keep paying the household bills and prevent a party from terminating services to the family home:
Section 226 of the ''Family Law Act'' allows the Provincial Court and the Supreme Court to make a conduct order that can require a party to keep paying the household bills and prevent a party from terminating services to the family home:
Line 59: Line 59:
Most of the time, people don't stop paying the mortgage or cut off the electricity to the former family home when they move our, however can be very tempting to do this like this when emotions are running high, when there's not enough money to pay rent at the new place plus rent for the old place, or when the BC Hydro account at the former family home is in the name of the person who needs to arrange for the electricity to be hooked up at his or her new place. The court is not likely to make orders under s. 226 when there's not enough money to pay for everything, but it will step in where someone is acting out of spite or malice.
Most of the time, people don't stop paying the mortgage or cut off the electricity to the former family home when they move our, however can be very tempting to do this like this when emotions are running high, when there's not enough money to pay rent at the new place plus rent for the old place, or when the BC Hydro account at the former family home is in the name of the person who needs to arrange for the electricity to be hooked up at his or her new place. The court is not likely to make orders under s. 226 when there's not enough money to pay for everything, but it will step in where someone is acting out of spite or malice.


==Financial Restraining Orders==
==Financial restraining orders==


A ''restraining order'' is an order of the Supreme Court requiring someone to do something or to not do something. A typical restraining order relating to family assets reads something like this:
A ''restraining order'' is an order of the Supreme Court requiring someone to do something or to not do something. A typical restraining order relating to family assets reads something like this:
Line 85: Line 85:
===The Rules of Court===
===The Rules of Court===


Rule 12-4 of the Supreme Court Family Rules gives the court the authority to make a general restraining order, also called an ''injunction'', to make someone to do something or not do something. The potential scope of these restraining orders is very broad, and can include, for example, a restraining order identical to that provided for in s. 91 of the ''Family Law Act'' as well as an order stopping someone from racking up debt by drawing on credit cards and lines of credit.
Rule 12-4 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] gives the court the authority to make a general restraining order, also called an ''injunction'', to make someone to do something or not do something. The potential scope of these restraining orders is very broad, and can include, for example, a restraining order identical to that provided for in s. 91 of the ''Family Law Act'' as well as an order stopping someone from racking up debt by drawing on credit cards and lines of credit.


Rule 12-4 says little more that "the court can issue an injunction." A 1986 case of the British Columbia Court of Appeal, ''British Columbia v. Wale'', offers some guidance. In that case, the court held that someone applying for an injunction had to prove three things. In a family law context involving unmarried parties, these are that:
Rule 12-4 says little more that "the court can issue an injunction." A 1986 case of the British Columbia Court of Appeal, ''{http://canlii.ca/t/1q5c1 British Columbia v. Wale]'', 1986 CanLII 171 (BCCA) offers some guidance. In that case, the court held that someone applying for an injunction had to prove three things. In a family law context involving unmarried parties, these are that:


#you have a reasonable claim against assets owned by your spouse;
#you have a reasonable claim against assets owned by your spouse,
#your spouse has disposed or encumbered his or her assets or is likely do so; and,
#your spouse has disposed or encumbered his or her assets or is likely do so, and
#the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted.
#the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted.


===The ''Law and Equity Act''===
===The ''Law and Equity Act''===


Section 39 of the provincial ''Law and Equity Act'' does pretty much the same thing as Rule 12-4 of the Supreme Court Family Rules. Section 39 says this:
Section 39 of the provincial ''[http://canlii.ca/t/8459 Law and Equity Act]'' does pretty much the same thing as Rule 12-4 of the Supreme Court Family Rules. Section 39 says this:


<blockquote><tt>(1) An injunction ... may be granted ... in all cases in which it appears to the court to be just or convenient that the order should be made. </tt></blockquote>
<blockquote><tt>(1) An injunction ... may be granted ... in all cases in which it appears to the court to be just or convenient that the order should be made. </tt></blockquote>
Line 103: Line 103:
This section gives the court a fairly broad authority to make an injunctions where the injunction is justified. Much like injunctions under Rule 12-4, you will have to show that:
This section gives the court a fairly broad authority to make an injunctions where the injunction is justified. Much like injunctions under Rule 12-4, you will have to show that:


#you have a reasonable claim against assets owned by your spouse;
#you have a reasonable claim against assets owned by your spouse,
#your spouse has disposed or encumbered his or her assets or is likely do so; and,
#your spouse has disposed or encumbered his or her assets or is likely do so, and
#the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted.
#the inconvenience that will be suffered by your spouse as a result of the injunction is less severe than the inconvenience you will suffer if the injunction isn't granted.


===Applying for Restraining Orders Without Notice===
===Applying for restraining orders without notice===


The court can only make orders, including restraining orders, when a court proceeding has been started. When there is an urgent problem, as might be the case if a spouse is threatening to sell or move an asset, applications for injunctions and restraining orders can be made with little or notice to the spouse and sometimes before the spouse has even been notified of the court proceeding.
The court can only make orders, including restraining orders, when a court proceeding has been started. When there is an urgent problem, as might be the case if a spouse is threatening to sell or move an asset, applications for injunctions and restraining orders can be made with little or notice to the spouse and sometimes before the spouse has even been notified of the court proceeding.


It's important to know that if you are applying for an injunction or restraining order without notice to the other spouse, the court will require that you make full and complete disclosure of all of the relevant facts, even of those facts that aren't in your favour. If it is discovered that you haven't made full disclosure, the court can set aside the injunction, make an award of costs against you, or make an award of damages to compensate the other party for any inconvenience caused by the injunction. In a 1986 Supreme Court case called ''Morin v. Morin'', this resulted in a spouse having the injunction cancelled and getting special court costs of the application.
It's important to know that if you are applying for an injunction or restraining order without notice to the other spouse, the court will require that you make full and complete disclosure of all of the relevant facts, even of those facts that aren't in your favour. If it is discovered that you haven't made full disclosure, the court can set aside the injunction, make an award of costs against you, or make an award of damages to compensate the other party for any inconvenience caused by the injunction. In a 1986 Supreme Court case called ''[http://canlii.ca/t/213m5 Morin v. Morin]'', 1986 CanLII 896 (BCSC), this resulted in a spouse having the injunction cancelled and getting special court costs of the application.


==Debts, Bankruptcies and Third Party Claims==
==Debts, bankruptcies and third party claims==


Apart from the possibility that your spouse will be less than forthright in dealing with the family property and family debt, you may also need to protect your interest in those assets from claims made by creditors and third parties, and against the possibility of your spouse's bankruptcy or your spouse racking up further debt. These issues can be dealt with, for the most part, by ensuring that you:
Apart from the possibility that your spouse will be less than forthright in dealing with the family property and family debt, you may also need to protect your interest in those assets from claims made by creditors and third parties, and against the possibility of your spouse's bankruptcy or your spouse racking up further debt. These issues can be dealt with, for the most part, by ensuring that you:


#separate, to convert the ownership of all property to a shared ownership with your spouse as tenants in common;
#separate, to convert the ownership of all property to a shared ownership with your spouse as tenants in common,
#register a CPL against all real property in which your spouse has an interest; and,
#register a CPL against all real property in which your spouse has an interest, and
#obtain a financial restraining order under one or more of s. 91 of the ''Family Law Act'', s. 39 of the ''Law and Equity Act'' or Rule 12-4 of the Supreme Court Family Rules.
#obtain a financial restraining order under one or more of s. 91 of the ''Family Law Act'', s. 39 of the ''Law and Equity Act'' or Rule 12-4 of the Supreme Court Family Rules.


Line 129: Line 129:
Creditors have a wide range of remedies available to them when a debtor fails to live up to the conditions of a loan, a line of credit or a credit card. Among other things, a creditor can:
Creditors have a wide range of remedies available to them when a debtor fails to live up to the conditions of a loan, a line of credit or a credit card. Among other things, a creditor can:


#seize any asset put up as collateral on the loan;
*seize any asset put up as collateral on the loan,
#sue the debtor for the amount owing;
*sue the debtor for the amount owing,
#put a lien on property owned by the debtor;
*put a lien on property owned by the debtor,
#garnish the debtor's wages;
*garnish the debtor's wages,
#force the sale of the debtor's property to meet the debt; or,
*force the sale of the debtor's property to meet the debt, or
#register a judgment against the debtor's property.
*register a judgment against the debtor's property.


Any one of these remedies can harm the interest the other spouse has in what would otherwise be family property, even if the other spouse had nothing to do with how or why the debt was incurred. The effect of separation can help to shield the other spouse's presumptive one-half interest in the family property from creditors and limit their ability to recover to the half of the property owed by the debtor spouse.
Any one of these remedies can harm the interest the other spouse has in what would otherwise be family property, even if the other spouse had nothing to do with how or why the debt was incurred. The effect of separation can help to shield the other spouse's presumptive one-half interest in the family property from creditors and limit their ability to recover to the half of the property owed by the debtor spouse.


===Third Party Claims===
===Third party claims===


Your spouse might be liable for damages or debt to someone in a court proceeding unrelated to your relationship. Your spouse may also have made a deal with someone outside the family that concerns the family property. These people may have a legitimate claim against the family property. The problem is that even though their claim or entitlement may be restricted to property owned by your spouse in his or her name alone, your interest in that property may be lost if a third party gets there first.
Your spouse might be liable for damages or debt to someone in a court proceeding unrelated to your relationship. Your spouse may also have made a deal with someone outside the family that concerns the family property. These people may have a legitimate claim against the family property. The problem is that even though their claim or entitlement may be restricted to property owned by your spouse in his or her name alone, your interest in that property may be lost if a third party gets there first.
Line 152: Line 152:
A trustee in bankruptcy cannot take property that doesn't belong to the bankrupt. If the spouses separate before the bankruptcy, only the bankrupt's one-half interest in the family as a tenant in common will go to the trustee.
A trustee in bankruptcy cannot take property that doesn't belong to the bankrupt. If the spouses separate before the bankruptcy, only the bankrupt's one-half interest in the family as a tenant in common will go to the trustee.


==Protecting Property Outside British Columbia==
==Protecting property outside British Columbia==


This issue is a bit difficult, so please bear with me. The law that deals with the division of property between spouses in this province is the ''Family Law Act''. Because the jurisdiction of the government of British Columbia is generally limited to the province of British Columbia, the government cannot usually make laws that affect people and things located outside of British Columbia. For the same reason, the courts of British Columbia usually only have the jurisdiction to deal with things located inside the province of British Columbia.
This issue is a bit difficult, so please bear with me. The law that deals with the division of property between spouses in this province is the ''Family Law Act''. Because the jurisdiction of the government of British Columbia is generally limited to the province of British Columbia, the government cannot usually make laws that affect people and things located outside of British Columbia. For the same reason, the courts of British Columbia usually only have the jurisdiction to deal with things located inside the province of British Columbia.
Line 166: Line 166:
The upshot of all of this is the following general rules:
The upshot of all of this is the following general rules:


#the courts of British Columbia generally cannot deal with real property located in other provinces or outside of Canada;
*the courts of British Columbia generally cannot deal with real property located in other provinces or outside of Canada,
#the Supreme Court of British Columbia can deal with out-of-province assets that are movable, like RRSPs, stocks, bank accounts, chattels and what not, as long as the owner has attorned to the court's jurisdiction; and,
*the Supreme Court of British Columbia can deal with out-of-province assets that are movable, like RRSPs, stocks, bank accounts, chattels and what not, as long as the owner has attorned to the court's jurisdiction, and
#the Provincial Court cannot deal with out-of-province issues at all.
*the Provincial Court cannot deal with out-of-province issues at all.


However, the ''Family Law Act'' contains some provisions that are meant to give the court ''in rem'' jurisdiction out of province under certain circumstances and, if those circumstances are met, allow the court to make an order restraining a person from disposing of property located outside the province. Although it remains to be seen how effective this legislation will be in imposing on the authority of another jurisdiction, the act's out of province restraining orders are discussed below.
However, the ''Family Law Act'' contains some provisions that are meant to give the court ''in rem'' jurisdiction out of province under certain circumstances and, if those circumstances are met, allow the court to make an order restraining a person from disposing of property located outside the province. Although it remains to be seen how effective this legislation will be in imposing on the authority of another jurisdiction, the act's out of province restraining orders are discussed below.
Line 174: Line 174:
This area of the law is extremely complex, and you really should consider hiring a lawyer to help you whenever you have an interest in assets located outside the province.
This area of the law is extremely complex, and you really should consider hiring a lawyer to help you whenever you have an interest in assets located outside the province.


===Immovable Property: Real Property===
===Immovable property: real property===


====The General Rule====
====The general rule====


Generally speaking, subject to the exception in the ''Family Law Act'' discussed below, there is nothing that can be done to stop someone from selling or otherwise dealing with real property located outside of British Columbia, even property that would normally qualify as a family asset. Usually, the only way to effectively protect that asset from sale or being used as collateral is to start a court proceeding in the jurisdiction in which the property is located.
Generally speaking, subject to the exception in the ''Family Law Act'' discussed below, there is nothing that can be done to stop someone from selling or otherwise dealing with real property located outside of British Columbia, even property that would normally qualify as a family asset. Usually, the only way to effectively protect that asset from sale or being used as collateral is to start a court proceeding in the jurisdiction in which the property is located.
Line 186: Line 186:
<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 $25,000 share of the family home, for a total property interest of $75,000.</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 $25,000 share of the family home, for a total property interest of $75,000.</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 ''Mareva'' injunction will stop someone from selling or encumbering assets 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, ''Mareva Compania Naviera S.A. v. International Bulkcarriers S.A.'') 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 ''Mareva'' injunction will stop someone from selling or encumbering assets 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, ''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,
#show that there is a real risk that the other party will dispose of those assets before a final order is made; and,
#show that there is a real risk that the other party will dispose of those assets before a final order is made, and
#guarantee that you will make good any harm the other party might suffer if the order is made.
#guarantee that you will make good any harm the other party might suffer if the order is made.


Line 204: Line 204:
This part of the act is extremely complicated and you should get advice from a lawyer whenever you may need to deal with movable and immovable property located outside of British Columbia.
This part of the act is extremely complicated and you should get advice from a lawyer whenever you may need to deal with movable and immovable property located outside of British Columbia.


===Movable Property: Financial Assets===
===Movable property: financial assets===


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.
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.
Line 210: Line 210:
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.
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 ''Boyd v. Boyd'', the Court of Appeal confirmed that the court can make ''in personam'' restraining orders which are effective against movable assets located outside the province.
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.
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.

Navigation menu