What You Need to Know
Not everyone understands the importance of jurisdiction when it comes to which court you want to hear and decide your family law case.
If you live in BC and you have a dispute involving child support or parenting time, you can choose either the BC Provincial Court or the BC Supreme Court. If your dispute involves family property and debt, you can only go to the BC Supreme Court.
But what if you or your ex don’t live in BC?
For example, if one of you lives in another country, you may not be able to have a BC court give you a court order dealing with child support, parenting arrangements or even division of assets.
Why is that?
A court can only make a decision in a case when it has the proper “jurisdiction” to do so.
This can be a difficult (albeit fascinating) area of the law requiring legal advice before you proceed to court. Otherwise, you could well be wasting valuable time and money chasing after something that is just not available to you in BC.
“Jurisdiction” in the legal context means the official power, and the extent of that power, to make legal decisions and judgments. It can also mean a system of law courts.
For example, if I say, “in some jurisdictions, a spouse must prove the adultery of the other spouse before they can get a divorce,” I am referring to the court systems in those jurisdictions. Without proof of adultery in those places, the court has no power (or jurisdiction) to grant the divorce.
In this section, when we talk about “jurisdiction”, it will be in the first context, that is, the court’s power to make the order you want.
A BC court’s jurisdiction in family cases is based on a number of different factors and will often depend on the kind of issue before the court.
For example, is it a property division issue, a parenting arrangement issue or a support issue?
There may be different rules and considerations that apply when a BC court is deciding whether it has jurisdiction to deal with a particular issue. Even if a BC court decides that it does have jurisdiction, it will often consider other factors in deciding whether it should decline to take jurisdiction in favour of a court in another country.
Because parents (and their jobs) are much more mobile these days, family lawyers see a lot more cases where one spouse may choose to live in a different country from the other spouse.
So which country’s courts should be able to make decisions about these families and their children?
One of the big issues often involves where the children should live if the parents have decided to live in different jurisdictions and how the non-custodial parent can have meaningful parenting time with the children.
In other cases, one parent may have moved with the children to a different place without the consent of the other parent.
In still others, one parent may have refused to return the children to the other parent following a holiday or visit to the first parent’s home.
New and different situations seem to come up all the time which keeps family lawyers on their toes!
Because BC family law is often more advantageous to mothers and children than family law in other countries, many people do want to convince a BC court that it should take jurisdiction over their case.
However, you may be the party who does not want the BC court to take jurisdiction because you prefer another country’s court to decide your issues.
There are many and varied reasons for both positions but it is usually not a surprise that one party thinks they will have an advantage and will get a better result if the case is heard in the jurisdiction they have chosen.
If you have a question about jurisdiction and how it might apply to your family case, we can help. Contact us to discuss your situation.
