Difference between revisions of "Further Topics and Overlapping Legal Issues in Family Law"

The ''Divorce Act'' no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.

The ''Divorce Act'' no longer requires spouses to be of opposite genders, whether at the end of their marriage or at the beginning of it, to qualify for a divorce order.

Different rules apply when orders about the care of children are made outside of British Columbia under the federal ''Divorce Act'' or outside of British Columbia, and outside of Canada, under another law.

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. 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 which 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.

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.

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 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 meddling with the orders of another court. Our court will usually hear an application for an order different than the original order if:

Different rules apply when orders about support are made outside of British Columbia under the federal ''Divorce Act'' or outside of British Columbia, and outside of Canada, under another law.

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.

Under s. 5 of the ''Divorce Act'', the courts of British Columbia will hear an application for an order different than the original order if:

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 ''[http://canlii.ca/t/84l3 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 ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.

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, almost impossible to understand and 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 make decided to deal with a 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'',

*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 you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''Divorce Act'' and the ''Family Law Act''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement was and obligation between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.