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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)
Revision as of 19:27, 27 June 2019
, 19:27, 27 June 2019→Protecting property outside British Columbia
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*When someone attorns to the jurisdiction of the courts of British Columbia, they submit to the court's authority. The court still may not have the authority to make orders about things located outside the province, but it does have the authority to make orders about the person located outside the province. This is called "''in personam'' jurisdiction." | *When someone attorns to the jurisdiction of the courts of British Columbia, they submit to the court's authority. The court still may not have the authority to make orders about things located outside the province, but it does have the authority to make orders about the person located outside the province. This is called "''in personam'' jurisdiction." | ||
*A court with ''in personam'' jurisdiction over a person can make orders requiring the person to do or not do things involving certain kinds of things located outside the province, such as assets like bank accounts, stocks, investment accounts, and similar assets that aren't real estate. These assets are called ''movable assets''. | *A court with ''in personam'' jurisdiction over a person can make orders requiring the person to do or not do things involving certain kinds of things located outside the province, such as assets like bank accounts, stocks, investment accounts, and similar assets that aren't real estate. These assets are called ''movable assets''. | ||
*Whether a court has in personam jurisdiction or not, it usually won't have jurisdiction over real property located outside the province. This kind of jurisdiction is called "''in rem'' jurisdiction." Real property and things attached to real property like buildings are called ''immovable assets''. | *Whether a court has ''in personam'' jurisdiction or not, it usually won't have jurisdiction over real property located outside the province. This kind of jurisdiction is called "''in rem'' jurisdiction." Real property and things attached to real property like buildings are called ''immovable assets''. | ||
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. | ||
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The courts of this province will, however, usually compensate a spouse for an interest in out-of-province property by reapportioning the property that the court can deal with, property located inside British Columbia, to compensate for the property that it can't deal with. Here's an example: | The courts of this province will, however, usually compensate a spouse for an interest in out-of-province property by reapportioning the property that the court can deal with, property located inside British Columbia, to compensate for the property that it can't deal with. Here's an example: | ||
<blockquote>Zygmunt has a farm in Flin Flon, Manitoba worth $50,000. Zygmunt and Ivan both own the family home in Vernon, British Columbia worth $100,000. Assuming both properties were bought after the relationship began and that both are family property, under an equal division each of the spouses would be entitled to $25,000 for the farm in Manitoba and $50,000 for the family home in British Columbia.</blockquote> | <blockquote>Zygmunt has a farm in Flin Flon, Manitoba worth $50,000. Zygmunt and Ivan both own the family home in Vernon, British Columbia worth $100,000. Assuming both properties were bought after the relationship began and that both are family property, under an equal division, each of the spouses would be entitled to $25,000 for the farm in Manitoba and $50,000 for the family home in British Columbia.</blockquote> | ||
<blockquote>Since the court can't normally make an order requiring the sale or transfer of the property in Flin Flon, an equal division of the assets in this jurisdiction would give each spouse $50,000, half the value of the family home, but this would short Ivan of his interest in the farm. To avoid this unfairness, the court could simply divide the family home in Vernon in favour of Ivan, and give him a $75,000 share rather than an equal share.</blockquote> | <blockquote>Since the court can't normally make an order requiring the sale or transfer of the property in Flin Flon, an equal division of the assets in this jurisdiction would give each spouse $50,000, half the value of the family home, but this would short Ivan of his interest in the farm. To avoid this unfairness, the court could simply divide the family home in Vernon in favour of Ivan, and give him a $75,000 share rather than an equal share.</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> | <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.'', [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 ''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, | ||
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<blockquote><blockquote><tt>(iv) provide for any other matter in connection with the extraprovincial property;</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(iv) provide for any other matter in connection with the extraprovincial property;</tt></blockquote></blockquote> | ||
The first stumbling block is to figure out whether the court can divide the out-of-province property, and that requires a difficult analysis under ss. 106, 107 and 108 of the Act. Assuming the court can make such orders, the next step is to find out whether the order would "enforceable against a spouse" in the place where the property is located. If the <span class="noglossary">answer</span> to both questions is yes, then the court may make an order for the preservation of the foreign property. | The first stumbling block is to figure out whether the court can divide the out-of-province property, and that requires a difficult analysis under ss. 106, 107, and 108 of the Act. Assuming the court can make such orders, the next step is to find out whether the order would be "enforceable against a spouse" in the place where the property is located. If the <span class="noglossary">answer</span> to both questions is yes, then the court may make an order for the preservation of the foreign property. | ||
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. | ||