What if one party doesn't live in BC?

(Interjurisdictional issues)

If you or the other party does not live in BC, standard family rules will not apply. Your case will be interjurisdictional. These cases are more complicated, and you should see a lawyer to get some advice. To find one, see Who can help? You can also read our booklet Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce.

Click on one of the topics below for answers about some of the most common interjurisdictional questions:

What happens if I didn't serve the other party with the Provincial Court application before they left BC?

The Provincial Court has no jurisdiction over an application that includes parties outside of the province (unless you're applying to get or change a support order). That means that you'll have to fill out the Supreme Court family forms and refile your case there. (See our guides on how to get family orders and choose the one that applies to you). Parties who are outside the province get more time to file a response with the court.

What if the other party was served with the Provincial Court application before leaving BC?

In that case, you can continue with your case as if the other party were still in BC.

Can I file my case in Provincial Court if the other party agrees?

Yes — if the other party files an affidavit saying they attorn to (accept) the jurisdiction of the Provincial Court, you can file there. Sometimes, it's practical for both parties to do so.

However, you can't force the other party to accept the jurisdiction of the Provincial Court, or get around the interjurisdictional issue if the other party doesn't agree. For instance, the Provincial Court cannot give you an order that allows you to serve the documents by alternative service (it has no authority to give or create that kind of jurisdiction).

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Can I file to get or change a support order in Provincial Court if one party lives outside BC?

In some cases, yes you can. Applications to change or cancel a support order must be made in the same court that originally made the order. So if you want to change an order that was made in Provincial Court, you must file your application there. Likewise, if your support order was made under the Divorce Act and you want to change it, you must file your application in Supreme Court.

If you don't yet have a support order but you want to get one (an initial support order), you can choose to file in Provincial Court. You must follow a complicated procedure if you choose this option; it's described in the Interjurisdictional Support Orders Act. It's best to get legal advice first to figure out whether you should use this process. However, if you are applying for support under the Divorce Act, you will have to file in Supreme Court.

The Ministry of Attorney General's website has forms and instructions you can use to get or change interjurisdictional support orders.

What happens if I've left BC?

All of the circumstances described in the other answers would also apply to you.

You can choose to file your application in either Provincial or Supreme Court, but get legal advice about which court to use and how to handle your case.

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 to proceed and in which court.

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Do the children have to be in BC for me to apply here for a custody or access order?

The answer is complicated. The court can determine whether a BC court or a different court is more appropriate for making decisions about the child.

The law says that a BC court may have jurisdiction to make an order for custody or access if the child is "habitually resident" in BC, as defined in section 44 of the Family Relations Act. "Habitually resident" can include 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 here. There are many other factors that might let the Provincial Court take jurisdiction, such as those found in case law (cases previously decided by the courts).

Even if the court finds that the child is not habitually resident, section 45 of the Family Relations Act says 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 taken out of BC or if returned to the care of the parent who resides elsewhere.

These cases must be heard in Supreme Court if one of the parties is not in BC. They can be especially complicated, so you'll need legal advice — see Who can help? for links to resources.

What if I have a BC court order and the other party isn't obeying it?

If the other party is not in BC, you'll need to file your application in Supreme Court, regardless of which court made the initial order — unless you are asking the court to enforce an order that is for support/maintenance and nothing else. (The Family Maintenance Enforcement Act gives the Provincial Court power to enforce support orders.)

What if I have a court order from outside BC and the other party isn't obeying it?

Custody can be enforced by either Provincial or Supreme Court. (However, there are limits to what the courts can do about enforcing access rights — if you are trying to do so, you'll need to get legal advice.)

If you have a support order you want to enforce, the simplest way is to enrol in the Family Maintenance Enforcement Program. You can do so regardless of where the order was made. You also have the option of asking the Provincial or Supreme Court to enforce a support order by filing a certified copy with the court.

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