Separated couples have all kinds of living arrangements, ranging from both spouses staying in the family home, to “nesting”, to one or both of them moving out permanently. Some people even end up moving to another province after a relationship ends.
Where separated spouses live in different provinces, this can impact how their family law issues relating to property, support and divorce are resolved. If you and your ex now live in different provinces, here are a few things to consider.
Property Division
If you moved to British Columbia from another province in Canada, such as Alberta, you may be able to start a court proceeding here to divide the property and debt owned by you and your former spouse. However:
- Just because you live in BC does not mean the BC court will agree to hear your claim. In deciding whether to allow your proceeding to go ahead in BC, the court will consider a variety of facts about you, your relationship, your property, and the evidence that the court may need. These factors include where your property and witnesses are located.
- Even if the BC court proceeds with your case, this does not mean that the court will apply BC law to your case. This might be surprising, but courts in one province do sometimes apply the law of other locales. In deciding whether to apply BC law, the court will consider where you and your ex lived together.
- If you have a cohabitation or marriage agreement with your ex, make sure to review it first. It may stipulate where any court proceedings should take place and which law should be applied.
Child and Spousal Support
If you have moved to British Columbia and you want to seek an order for child or spousal support against your ex who lives in another province, you need to follow BC’s Interjurisdictional Support Orders Act (“ISOA”). The ISOA sets out a simple – but perhaps unexpected – process for seeking support orders against a person who lives elsewhere:
- Instead of starting a court proceeding, the person seeking support prepares an application and sends it to an office at BC’s Ministry of Justice.
- The Ministry reviews the application and, once satisfied that it is complete, forwards it to the equivalent government office in the province where your spouse resides.
- That other office then arranges for service of the application on your ex, and the application is decided in the other province’s court.
- You do not have to attend court, and you will be notified of the result once the court has considered your application and your ex’s response.
Divorce
If all you are seeking from the court is a divorce, the rules are a bit simpler: you can ask the court for a divorce in any province you or your spouse have lived in for at least one year.
Takeaway
The law in this area can be complex, with many variables to consider. This post deals with only a few of the issues that a person who has moved provinces post-separation might need to consider – for example, moving when you have young children should be approached very carefully.
Ultimately, you and your lawyer will need to take time to work through all the variables to be sure you proceed in the way that is right for you.
Have questions about how your post-separation move affects your family law issues? Contact us today to see how we can help.