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Difference between revisions of "Protecting Property and Debt in Family Law Matters"
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Protecting Property and Debt in Family Law Matters (view source)
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Bank accounts, stocks, investment accounts, and similar assets that aren't real estate are called movable assets. The BC Supreme Court usually has jurisdiction over movable assets located outside of the province where the owner has attorned to the jurisdiction and accepted the court's authority. | Bank accounts, stocks, investment accounts, and similar assets that aren't real estate are called movable assets. The BC Supreme Court usually has jurisdiction over movable assets located outside of the province where the owner has attorned to the jurisdiction and accepted the court's authority. | ||
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 s. 91 of the ''Family Law Act''. Inside British Columbia, a s. 91 order will stop a spouse from dealing with everything that is family property or other | 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 s. 91 of the ''Family Law Act''. 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 ''[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 that 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 that are effective against movable assets located outside the province. | ||
It is important to remember that a section 91 order is an | 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. | ||
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. | ||
