Ontario vs British Columbia: Where You File For Divorce Matters
To file for divorce is an important step the goodfirm Family Lawyers can help with. Affordable travel has made long distance relationships increasingly common. For couples who are legally married, the Divorce Act will apply no matter what province they file for divorce in. For common law couples, each province has different legislation in place for how property, assets and spousal support is divided. When a couple lives in different provinces during their relationship, they may be eligible to file for divorce or family claim in either jurisdiction. In a recent BC case, the issue of the proper place to file a family claim was front and center.
In Fastlicht v. Carmichael, 2018 BCSC 37, a professional couple split their time between Vancouver and Toronto. The parties planned their finances together and later acquired property in BC. Before separating, they signed a separation agreement. The wife filed a family claim in BC. The husband contested filing in BC and brought an application to court requesting that the British Columbia Supreme Court refuse to hear the case on the basis that Ontario was the proper place instead.
Having the case heard in Ontario would have been a significant advantage; British Columbia is a “community property regime” where common law and married couples each have an equal share of all property and debt at the date of separation – regardless of who is the legal owner. Ontario is not a community property regime and common law couples are each responsible for debts in their names and only entitled to an equal share of property they own together. Additionally, under Ontario law, common law spouses are only entitled to spousal support if they have been living together for three years and so the wife would be unable to advance a claim for spousal support.
Unfortunately for the husband, he filed the required jurisdictional response contesting jurisdiction 1 day past the 30 day deadline days as required by the Supreme Court Family Rules. A consequence of failing to file one can result in the court finding that the person “attorned” or agreed to having BC assume jurisdiction and is unable to later argue that another court would be more appropriate. Madam Justice Maisonville held that the failure to file the response on time and the fact that the husband had taken steps to defend the action in BC by making discovery requests, attending a JCC and appearing at the very application itself was enough evidence that the husband had attorned to the jurisdiction.
Although she ruled that he attorned, she also went to consider whether the BC has jurisdiction to hear the family claim and whether Ontario was a more appropriate court for property division and spousal support. The onus is on the party seeking to esatblish that the court has jurisdiction (Cockerham v. Hanc, 2014 BCSC 2432 at para. 31 and Aleong v. Aleong, 2013 BCSC 1428).
With respect to jurisdiction, under the Family Law Act in BC, the Supreme Court of BC has jurisdiction to divide property and debt if either spouse is habitually resident in BC or there is a real and substantial connection between BC and the claim. She held that the claimant was a habitual resident of BC when the proceeding was started so the BC court could her the property or debt division issue.
The act has no provisions to determine whether the court has jurisdiction to spousal support and so the Court Jurisdiction and Proceedings Transfer Act applies. Under the act, a BC court can take jurisdiction where there is a real and substantial connection to BC. Madam Justice Maisonville held that the debts and property in BC and the fact that a portion of their separation agreement referenced British Columbia were enough to establish that the BC Supreme Court has jurisdiction to hear a spousal support claim.
She next considered whether the BC Supreme court should decline to hear the case on the grounds that Ontario is more appropriate. The court has discretion under the Family Law Act and the CJPTA to decline to take jurisdiction if somewhere else would be a more appropriate venue. One of the factors to be considered in the analysis is what law is to be applied to the issue. The Family Law Act sets out how to determine the proper law to be applied. As the parties most recent residence was Vancovuer, Madam Justice Maisonville held that the BC Family Law Act is the proper law to be applied to the dispute. She declined to exercise the courts discretion to refuse to take jurisdiction.
Madam Justice Maisonville held that the respondent attorned to the jurisdiction of BC and that a BC court would hear the property division and spousal support claims based on BC law. If you want to file for divorce, contact the goodfirm family lawyers for help.