What if one party does not live in British Columbia?

(interjurisdictional issues)

Note: Mouse over any of the terms in green type to see a definition.

If you or the other party does not live in BC, standard family law rules will not apply. If this is your situation, your case is more complicated, and you should see a lawyer to get some advice. See Who can help? for how to find a lawyer. Or see the booklet Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce.

This fact sheet describes a few examples of interjurisdictional issues and what would happen in each situation.

What if I filed an application in Provincial Court but did not have it served on the other party before he or she left BC?

If one of the parties has left BC, you will need to proceed in the Supreme Court of BC because the Provincial Court of BC has no jurisdiction over any application that includes parties outside of this province.

This means that you will have to fill out the Supreme Court forms instead. Also, under the Supreme Court Rules, the other party will have a longer time to file responding documents if they are served with the application outside BC than they would have if they were served within BC.

What if the other party was served with the Provincial Court application before he or she left BC?

In that case, you may proceed or take the next steps as if the other party was still in BC.

Is it ever possible to proceed in Provincial Court if the other party is no longer in BC?

The Provincial Court has jurisdiction if a party who lives outside of BC specifically attorns to (accepts) the jurisdiction of the Provincial Court. There may be times when it is convenient or practical to do so.

You cannot try to get around or avoid the problem of the other party being outside BC by asking the Provincial Court for an order to serve the documents by substituted service within the province, as the Provincial Court cannot give or create that kind of jurisdiction.

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Are there any other situations where an application can be made in BC when one party lives outside BC?

The Interjurisdictional Support Orders Act (and the Reciprocal Enforcement of Maintenance Orders Act that preceded it) specifically provides that applications for initial orders for child or spousal support/maintenance in which one party is not in BC may be made in Provincial Court. Applications to change or cancel an order must be made in the same court that originally made the order (Provincial or Supreme).

The Interjurisdictional Support Orders Act has its own rules for serving documents, and can be quite complicated. Applications may be started either in BC or in another province or state when one of the parties is in BC and one of the parties is not. Get legal advice or assistance to help determine whether your application needs to be made in Provincial Court or Supreme Court. See Who can help? for more information about getting legal advice.

Information and forms/instructions to get or change support orders (Interjurisdictional Support Orders Act applications) are available from the Ministry of Attorney General's Interjurisdictional Support Orders website.

However, if the support or maintenance order application is made under the Divorce Act, you must use the rules and forms set out in the Divorce Act and the Supreme Court Rules, which require that you proceed in Supreme Court. If you already have an order for support or maintenance under the Divorce Act, you must make any application to change that order in Supreme Court.

What if I have left BC?

All of the circumstances described above would apply to you.

You may also file your own application in Provincial Court or Supreme Court, but get legal advice first to determine what might be the best steps for you to take and where to take them, considering all of the circumstances of your case.

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What if we have an order from a court outside BC that is not for support, or includes other issues as well as support, and one party is applying to change it?

This situation is more complex. Get legal advice about how and in what court you may proceed, considering your individual circumstances.

Do the children have to be in BC?

A court in BC may have jurisdiction to make an order for custody or access if the child is habitually resident (lives) in BC. The court has this right so it can determine whether a BC court or a different court is the more appropriate court to make decisions about the child.

"Habitually resident" is defined in section 44 of the Family Relations Act as including situations where the child lives in BC at the beginning of the application for an order, or if a child does not usually live in BC but is physically present in BC. The court must also find evidence of a number of other factors to be able to take jurisdiction. For example, case law (cases previously decided by the courts) can help the court decide if a child is habitually resident. Even if the court finds that the child is not habitually resident, section 45 of the Family Relations Act states that the court can take jurisdiction over custody or access for a child if the child is physically present in BC and the court is satisfied that the child would suffer serious harm if he or she remained with or was returned to the custodial parent or was removed from BC.

These cases must be heard in Supreme Court if one of the parties is not in BC. These cases can be particularly complicated. If you are in this situation, get legal advice.

What if I have a BC court order and it is not being obeyed by the other party?

If the other party is not in BC, you will need to proceed in Supreme Court, whether the order was made in Provincial or Supreme Court, unless your order is only for support or maintenance. The Family Maintenance Enforcement Act covers enforcement of support or maintenance orders in Provincial Court.

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What if I have an order from a court outside BC and it is not being obeyed by the other party?

Custody may be enforced by either Provincial or Supreme Court, but there are limits to what the courts can do about enforcing access rights. If you are trying to enforce your access rights, get legal advice. See Who can help? for information about where to get legal advice.

You will have to file a certified copy of the order you seek to enforce. Provincial Court may refuse to take jurisdiction if the judge believes it would be more appropriate to have the matter determined by the Supreme Court. The Family Maintenance Enforcement Act covers enforcement of support or maintenance orders in Provincial Court, even if the orders were made by a court outside BC, and at any level.

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