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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 appliesUnder 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.

 

Ontario vs British Columbia: Where You File For Divorce Matters
August 18, 2018

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 […]

Have you been left with multiple wills or a will and a codicil? Vancouver Estate Lawyers are here to help. Section 58 of WESA.
August 10, 2018

If you discover what appears to be multiple wills or a will and a codicil or you simply don’t know whether a document left by a testator constitutes a will, then give Vancouver Estate Lawyers a call. There is a curative provision under s. 58 of the Wills, Estates and Succession Act that may be […]

Estate Litigation Update: Court refuses brother’s application for leave to recover estate assets
August 3, 2018

Estate litigation in British Columbia can be a complicated area. There are many procedural rules that govern the administration of and actions on behalf of an estate. The goodfirm Vancouver Estate Lawyers can help you navigate this confusing area. In Fry v. Fry, 2018 BCSC 1018, a court refused to grant leave to a beneficiary to […]

Inheritance, gifts and excluded property and property transfers
July 26, 2018

You A recent case McCarthy v. McCarthy, 2018 BCSC 1210, is a good reminder of how to determine whether a property transfer is excluded property or a family asset.  For example, imagine that you have been in a relationship with another person for a short period of time. Your mother then transfers property held in […]

Challenging a Will? Avoid THESE mistakes…
July 19, 2018

If you are considering challenging a will and/or recover misappropriated assets for a loved one’s estate, following the correct procedure is crucial. The goodfirm Vancouver Estate Lawyers know and understand the complicated procedures.  In Naidu v. Yankanna (Estate), 2018 BCSC 878, a son and daughter started a court action to recover various real estate properties for their father’s […]

A cautionary tale from the Court of Appeal why court procedure must be followed!
July 5, 2018

Are you a being sued in a civil lawsuit? Are you unsure of how to navigate the legal system?  If you answered ‘yes’ to both of these questions then you need to contact a Civil Litigation Lawyer in Vancouver.  As a word of caution, a recent Court of Appeal decision, Andrews v. Clay, 2018 BCCA […]

In a recent motor vehicle accident, the plaintiff was awarded $2,095,000 in damages of which $1,600,000 was for loss of future income-earning capacity!
June 21, 2018

Did you sustain injuries following a motor vehicle accident? Are you unable to maintain your previously held position? Do you have a claim for loss of future income-earning capacity?  The Goodfirm lawyers can help you recover the compensation that you are entitled to. A recent Supreme Court decision, Murphy v. Hofer, 2018 BCSC 869, shows […]

Are you unsure of how to interpret a clause in a will? – Vancouver Estate Lawyers
June 14, 2018

  Richter Trial Lawyers can guide you through the process of interpreting what a clause in a will means to ensure that you receive the gift you are entitled to. In Thorne Estate (Re), 2018 BCSC 934, two executors sought interpretation or construction of clause 3(j) of Mr. Thorne’s will. The clause provided for the […]

Dispute a Will: New BC Supreme Court Decision Highlights Importance of Proper Procedure
June 7, 2018

How do you dispute a will? In Naidu v. Yankanna (Estate), 2018 BCSC 878, the court’s ruling shows what NOT to do when applying to vary a will. In Naidu, a testator died and left his entire estate to his new wife, to the exclusion of his prior wife and five of his children. Prior to […]

Document Production: how “private” are diaries and journals in family law cases? – Vancouver Family Lawyers
May 31, 2018

What we do: Document production is a key component in almost all legal cases. Your goodfirm Vancouver Family Lawyers can help you obtain documents crucial to resolving your family law matter. One recent change to disclosure obligations is the Supreme Court of British Columbia’s ruling that private and confidential journals must be handed over to the […]

DIY Personal Injury Claim: Don’t Make this Mistake!
May 24, 2018

Can you do your own personal injury claim? While any driver in an accident can start a claim, its wise to seek legal counsel for guidance before starting a claim to make sure you comply with the proper procedures. A failure to comply with the proper procedure can result in time being lost and witness’s […]

Injured and Needing Treatment? The goodfirm Vancouver Personal Injury Lawyers explain BC Court’s Latest Judgment
May 17, 2018

Your goodfirm Vancouver Personal Injury lawyer can help recover lost wages if you have been injured in an accident. A recent  motor vehicle case from the Supreme Court of British Columbia shows the courts approach to determining a wage loss award and illustrates why it’s important to have good liability coverage. In Noftle v. Bartosch, 2018 […]

Retroactive child support granted despite a Separation Agreement – Vancouver Family Lawyers
May 10, 2018

You Have you signed a separation agreement? Are you a parent who is now seeking retroactive child support payments and s. 7 expenses? Are you uncertain whether you can bring a claim to vary the terms of your separation agreement? The Goodfirm The Goodfirm Vancouver lawyers can assist you with varying orders and challenging family […]

Recovering Transferred Property – Vancouver Estate Lawyers
May 3, 2018

The goodfirm Vancouver estate lawyers can help. Many parents leave the remainder of their estate to their children and loved ones after passing. However, where a parent or loved one transfers property to someone else before passing, any transferred assets will not form part of the estate and will pass outside the will. As a […]

How will the changes to ICBC impact your personal injury claims?
April 26, 2018

If you, or your family and friends, were injured in a motor vehicle accident, you should be aware that the government of British Columbia is in the process of making significant changes to the Insurance Corporation of British Columbia (ICBC). While the amendments will come into force on April 1, 2019, some provisions will be […]

Helping your kids buy their first house? Read this first!
April 13, 2018

The Vancouver housing market is out of reach for many millennial who increasingly rely on their parents to help finance their first home purchase. In Villeneuve v. Agnew, 2018 BCSC 546, Mr. Justice Verhoeven highlighted the risks that a parent faces when helping a child purchase their first house. In Villeneuve, an ex-girlfriend filed a family law claim […]

Helping your kids buy their first house? Read This Cautionary Tale From the Court of Appeal
January 2, 2018

When you help your child purchase a house, are you entitled to an interest? As house prices continue to increase in the lower mainland, parents are helping finance their children’s house purchase. Few parents and children sign agreements or seek legal advice before they begin the process and one of the consequences is that parents and children […]

New Foreign Buyers Tax Not Grounds for Avoiding Real Estate Contract: BC Supreme Court Rules
December 8, 2017

On July 25, 2016, the government imposed the a new tax on foreign nationals acquiring real estate in Vancouver which required buyers to pay a 15% tax on the fair market value of the property. The tax took effect on August 2, 2016 and applied not only to purchase completing on or after that date, […]

Failure to Take Reasonable Offer to Settle Results in Costs Against Plaintiff
November 20, 2017

In Layes v. Stevens, 2017 BCSC 2011, a plaintiff who rejected a formal offer to settle before trial was ordered to pay for 2/3 of the costs from the time of the offer. On the Friday eve before trial, the defendant offered $490,125.45 to settle the claim. The plaintiff went on to be successful at trial, but  […]

BC Supreme Court Varies Will to Provide for Testator’s Spouse
November 3, 2017

What do you do as an excluded spouse? In Unger v. Unger Estate 2017 BCSC 1946, a testator left the residue of his estate to his children and nothing for his second wife of 34 years on account of having already transferred her a half share in the family home. The wife sought to vary the deceased’s last […]

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