Family Law: Drastic Differences by Province, Country
How many families only ever reside in one province, or even one country? The reality is that many families move provinces or even relocate overseas, for various reasons. Currently, the Alberta economy is such that Calgary in particular is seeing mass layoffs forcing many families to relocate in search of employment.
Managing a client’s expectations, in the context of what the law provides, is one of the most difficult challenges a family law lawyer faces. That challenge is made even more difficult where a family moved during their relationship. Multi-jurisdictional cases highlight the fact that family law is location specific, meaning that family law differs by province/territory, and certainly by country.
Laws in other countries, even in jurisdictions that are culturally relatively close such as our neighbours to the south, can be drastically different. There is a significant difference in child and spousal support awards between Canadian and US jurisdictions. Definitions of a spouse, a parent, laws concerning parenting, support and property rights differ. Legal systems in country’s further afield may afford no or very limited property rights to separating spouses, custody may by default be granted to fathers. In terms of support, child support may be minimal, and spousal support non-existent or only available to wives. Another important reality to take note of is that not all countries are parties to the Hague Convention on International Child Abduction. And of course, not all jurisdictions recognize same-sex or unmarried relationships.
However, even within Canada while there is uniformity in divorce, support and parenting rights, family property laws vary considerably. One common misconception in Canada is at what point do unmarried parties become “common law”, and thereby entitled to various types of relief, as this varies by province/territory. Couples who enter into prenuptial or cohabitation agreement and then relocate may be surprised to find that their agreement is not enforced as anticipated or intended in the jurisdiction they now reside in.
In determining which jurisdiction’s laws apply to a given family, the province/territory or country a couple resides in at the end of their relationship typically governs. That is, ordinary residence as at the date of separation is more relevant than nationality, where the parties were married, where they began to cohabit or even where they resided for the majority of their time together. It typically does not matter, for instance, that a couple resided in one province for 10 years and had only resided in another for six years before deciding to go their separate ways. That being said, the matter of jurisdiction is a complicated one because the jurisdiction in which the children of a marriage reside, typically has jurisdiction over parenting and support matters in relation to those children. Similarly, the jurisdiction where all matrimonial property is located is typically the proper jurisdiction for a matrimonial property action in relation to same.
The first takeaway point from all of this is that parties should seek timely advice from a family law lawyer when faced with these issues (or, better yet, in anticipation of). The second, related, takeaway is that parties must be aware going into a common law relationship or marriage that a jurisdictional move at some point (whether for job, education or business opportunity reasons) could have serious family law consequences.