Borders In Family Law: What To Do?
Family breakdown is no picnic, but it becomes even more complicated when spouses have ties outside of the province that result in properties being owned in more than one jurisdiction or one spouse wanting to move with children outside of BC on separation. The national and international draw of Kelowna makes these questions more and more relevant as people continue to flock here from other parts of Canada and abroad.
Take for example the case of Gwyneth Paltrow and Chris Martin. In March they announced plans to separate after 10 years of marriage. With two children, houses in Malibu and Los Angeles, and having made a recent move to Los Angeles from London, a move which Martin was apparently uneasy with, there is no doubt that the case entails complex jurisdisdictional challenges.
Cases such as these present problems for parties. They risk driving up legal costs and intensifying disagreements over what is to happen with the children. Jurisdictional fights can be complex, but some basic principles can help clear the fog.
Regarding divorce, in Canada, where the case plays out often hinges on who’s the first to file, and where they file, though you technically cannot file in a province unless you have lived there for one year. While an application can be made to transfer the file interprovincially, the effort and cost of that often results in the case being adjudicated where the case was first filed. For unmarried couples there is no initial bar to another action being commenced in a different province though an application to court to stay one case with two actions pending is likely.
Ultimately, courts will be reluctant to take jurisdiction regarding children in cases where they don’t live in the same community as the court. In BC, where parties seek to move with the children to destinations within or outside of Canada, the court will consider, generally, if the move is in the child’s best interests, the plans to maintain contact with the other parent and family and whether the move is proposed in good faith. These cases are always tough as a lot rides on the outcome, and the law has responded with a nuanced approach.
Regarding property, if a party files in a province where there is no property, subject to custody / parenting issues relating to children, the case is liable to be transferred to where the property is located, but that just deals with where the fight takes place. Regarding homes, usually the law of the land that the property is in applies. So BC law should apply to the division of a Kelowna home regardless of where you file in Canada.
I imagine that Gwyneth and Chris have more than adequate legal representation on these matters, and for good reason. In cases such as these it pays to obtain legal advice early from a lawyer. The choice of where to file, and who files first, can be important.