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Sophie Bartholomew, MacLean Family Law Vancouver

Biggest England Canada Family Law Differences are explained by former English and now Vancouver family law student and soon to be BC family lawyer Sophie Bartholomew.

Biggest England Canada Family Law Differences 1 877 602 9900

Given the ever-increasing mobility of people across the world, more people are making inquiries about where to start a family law dispute; their originating country, or Canada.

Jurisdiction

The biggest England Canada family law differences need to be assessed when deciding what jurisdiction to commence your action in.

This decision will initially be governed by whether you have jurisdiction (are legally able to) start an action for Divorce, finances or children matters in your originating country, Canada, or both. Rules regarding jurisdiction for each country are complex and specific to the countries in question. Please contact us if you would like to find out whether Canada has jurisdiction on the facts of your case. At the outset, you may also wish to contact a lawyer from the other jurisdiction to see if you also have jurisdiction to proceed with matters there. 

Once you can establish that you are able to bring an action in either jurisdiction; then you have to decide which jurisdiction will be more favorable to you both legally, and practically.

Vancouver International Family Law Lawyers 1 877 602 9900

England v Canada

Sophie Bartholomew of MacLean Law qualified and worked as a family law solicitor in Oxford, England, before moving to our Vancouver office in June 2017 to re-qualify as a Barrister and Solicitor in Canada. Although no longer practicing in England, Sophie has in-depth knowledge of the legal and practical differences between family law in the two jurisdictions. Biggest England Canada Family Law Differences are summarized in the handy table below:

Sophie’s top five things which may influence your decision are:

#

Canada, British Columbia

England & Wales

1

No-fault divorce available

Unless parties agree, divorce has to have a fault element

2

Common-law spouse

No common-law spouse

3

Court Process –  More options available for obtaining evidence before Trial and lengthier Trial.

Court Process –  Structured but an emphasis on settlement and evidence largely provided at Final Hearing.

Biggest England Canada Family Law Differences 1 877 602 9900

Explaining these in more detail:

  1. No-fault divorce

Canada:

Under s.8 of the Divorce Act, a court can grant a divorce on the ground that there has been a breakdown of the parties’ marriage. A Breakdown of the marriage can be established only if:

  1. the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  2. the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage,
    1. committed adultery, or
    2. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

This means that if the parties have been separated for at least one year, then either party can apply for divorce, even if the other party does not consent. This means that there is no-fault divorce. The court, however, must be satisfied that adequate provision has been provided for any child support before they are likely to make an order for Divorce.

England & Wales:

In England and Wales, the law is over 40 years old and has not been updated since the Matrimonial Causes Act 1973 (the “MCA”). A divorce will only be granted if the court is satisfied that the marriage has “irretrievably broken down”.

The current law means anyone seeking a divorce must;

  1. prove their partner is at fault through adultery, desertion or unreasonable behavior;
  2. if both sides agree, they can divorce after two years of separation; or
  3. in the absence of consent or evidence of fault, applicants must wait until they have been living apart for five years.

NOTE: Since the implementation of the Marriage (Same-Sex Couples) Act in 2013, same-sex couples have the same ground for divorce being that the marriage has “irretrievably broken down”, however, they cannot rely on adultery with a person of the same sex to prove their partner is at fault. This is because the definition of adultery requires that your partner has had sexual intercourse with a person of the opposite sex.

This essentially means that England and Wales have a fault-based divorce system, otherwise a party has to wait 5 years for a divorce if the other side does not agree.

CONCLUSION: If you want to divorce amicably without assigning blame to one party, then the ability to seek a no-fault divorce might weigh Canada as the more appropriate jurisdiction.

  1. Common-law spouse

Canada:

In Canada, since the enactment of the Family Law Act (“FLA”) in 2011, in certain circumstances, unmarried couples have legal remedies when separating, which were previously only available to married couples.

Under s.3 of the FLA a common-law spouse is a person who has:

  1. lived with another person in a “marriage-like relationship” for a continuous period of at least 2 years (applying to spousal support and for property and debt claims including pension division); or
  2. has a child with the other person (applying for spousal support only).

IMPORTANT NOTE – The limitation period for making a spousal support claim for married couples is 2 years from divorce, but for common law spouses it is two years from the date of separation.

Under Canadian case law, the court takes a ‘holistic approach’ in the factors to consider whether the relationship is marriage-like (Dey v. Blackett, 2018 BCSC 244, citing Austin v. Goerz, 2007 BCCA 586). This includes factors such as:

  1. the decision to have a child together;
  2. the purchase of a home together;
  3. the pooling of finances for family and other expenses;
  4. the financial assistance the parties provided to one another throughout their relationship;
  5. the length of the relationship; and
  6. the joint efforts to preserve the relationship by attending counselling

England & Wales:

There is a common misconception in England and Wales that if you have lived with your partner for a certain amount of time you are in a “Common-law marriage” and are entitled to similar remedies upon separation as a married couple would – this is not the case.

Unmarried couples in England and Wales have no guaranteed rights to ownership of each other’s property on relationship breakdown. If a cohabiting couple separate, the courts have no power to override the strict legal ownership of property based on the principles married couples can rely on.

However, if a formerly cohabiting couple cannot agree on their respective shares of property, it is possible to ask the court to determine an interest in property; but only for property acquired in circumstances where the legal rules of trusts or proprietary estoppel apply under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA). These rules are technical but, essentially, one party may be found to have a beneficial (or equitable) interest in the property even where the property is in the sole name of the other party; or to have a greater share than the other party where the property is held in joint names. The apparent intentions of the parties may be relevant in deciding the proportion of the property owned by each party. The length of time the partners have cohabited is not necessarily relevant. Each case is decided on its own facts.

CONCLUSION: If you are in a common-law relationship then you are likely to be afforded more beneficial remedies under the Canadian family law regime for unmarried couples who separate, than under civil law remedies of ToLATA in England and Wales.

2. Divorce and Court process

Both the UK and Canada have processes in place to deal with uncontested divorces. If financial and children matters are agreed, the divorce itself can be obtained through a paper exercise; you do not need to set foot in court. In both jurisdictions, various paperwork needs to be completed and a judge ultimately decides whether to grant the divorce based on the grounds stated. Where the differences largely arise is in relation to dealing with financial and children matters through the Court.

Canada:

Please see my previous blog about the family law provincial and Supreme Court process for an in-depth summary of the process in British Columbia Supreme Court.

The Courts have implemented a hearing called a Judicial Case Conference (“JCC”), whereby orders can be made by the parties by consent. This takes place near the beginning of the court process after initial financial statements have been exchanged in Form 8 and further documents have been requested and produced to the other.

If no agreement can be reached at the JCC, or through negotiations through counsel, then the matter proceeds to trial. Interim applications can be made after a JCC (or before a JCC with certain exceptions) and are largely made in relation to interim children and financial matters. These interim applications are important given the usual delay in getting to Trial. This means that there are rarely a set number of hearings as there is no limit on the number of applications that can be made.

Depending on the complexity of the matters to be heard and the length of the trial necessary, it can take over a year before the trial is heard.

Leading up to Trial, the parties continue the discovery process to try and gain as much evidence as possible in support of their positions. This often includes engaging joint expert reports, making demands for documents, the discovery of the parties (asking them questions which are transcribed and can be brought into evidence at trial), and pre-Trial Examination of third parties; to name a few. A Trial Management Conference then takes place which tries to address the procedural aspects of a trial, ensure the parties are ready and narrow the issues if possible. 

Atrial in Canada is often lengthy and can last up to three weeks; particularly if the matters in dispute are complex, if there are companies or cross-jurisdictional elements involved. The evidence rules are strictly adhered to in court, much like a civil trial, which can add complexity and time. Third-party witnesses, including expert witnesses, are routinely requested to appear and provide oral evidence or can be subpoenaed if they refuse to appear. 

Ultimately, the Judge weighs all the evidence and makes orders on the matters in dispute which are binding on the parties.

England & Wales:

The process to deal with financial and children matters in England and Wales, unlike Canada typically entails three hearings. For financial and children matters this consists of:

  1. First Directions Appointment (“FDA”) & First Hearing Dispute Resolution Appointment (“FHDRA”);
  • Prior to the FDA, the Court imposes deadlines for the parties to exchange Form E Financial Statements and supporting documents (often referred to as Form Evil financial statements by clients).
  • For children matters, prior to the FHDRA the Children & Families Court Advisory and Support Service (“CAFCASS”) may start making some basic safeguarding inquiries with the police and social services.
  • Various documents are filed with the Court before the FDA & FDHRA including:
  • a concise statement of issues;
  • a chronology of key facts and dates;
  • a questionnaire (of questions arising from the disclosure of the other party to date);
  • agreed case summary;
  • CAFCASS safeguarding checks; and
  • a draft directions order.
  • At the FDA the court can make directions to determine which questions should be answered, what valuations should take place and what other expert evidence is needed including any report prepared by CAFCASS.
  • At the FDHRA the court will consider the safeguarding information. No evidence is heard at this stage. The Court will try and encourage the parties to resolve the Children matters by agreement. If agreed, then the Court can make a final order. If not agreed, the court can sometimes order a fact-finding hearing e.g. to decide on the facts if there has been domestic violence, before the case proceeds to the next stage.
  1. Financial Dispute Resolution Hearing (“FDR”) & Dispute Resolution Appointment (“DRA”);
  • The parties carry out the directions made at the FDA and FDHRA such as answering questionnaires, engaging experts and filing proposals for settlement to prepare for the FDR and awaiting any CAFCASS report.
  • Various documents are filed with the Court before the FDR and DRA including bundles of updating paperwork to be used at court and open proposals for settlement with the Court on financial matters.
  • Unlike Canada, there are no examinations for discovery of any party or third party before the Final Hearing.  Much of the evidence available before the Final Hearing is just from documents and statements of the parties and third parties.
  • The FDR and DRA are ‘without prejudice’ hearings. This means that the Judge will try to assist in a settlement on financial and children issues. Judges sometimes give an indication of what order they would have made if it was a final hearing to inform the parties of the strength or weaknesses of their positions. Most cases settle at this stage of just after and if that is the case the Court can make a final order on the agreed terms.
  1. Final Hearing
  • If no settlement is reached, the parties prepare for a final hearing including preparing position statements and summaries
  • At the Final Hearing, it is a form of trial. The court will listen to evidence from the parties and the other side will be able to ask questions to challenge that evidence. Other witnesses sometimes give evidence and evidence from third parties’ statements are often relied on.
  • The court will ultimately grant orders and give reasons.
  • Final Hearings do not usually last longer than 5 days.

The court process is structured and makes attempts at settlement for the parties from the outset. Largely interim applications, except urgent applications, are not made and matters are dealt with by agreement wherever possible, or failing that at a Final Hearing. The opportunities to get direct evidence from parties and third parties are often limited to statements until you are at the Final Hearing stage.

CONCLUSION: If you have a complex or high net worth family file then you may wish to consider the detailed evidence and disclosure opportunities ingrained in the Canadian family law court system which include examination for discovery. This allows for in-depth and complex analysis, particularly of financial matters, which may be beneficial if your matter requires this level of complexity and attention to detail.

Of note, the implementation of Brexit is anticipated to have far-reaching and as-yet-unknown consequences for international families and individuals following relationship breakdown in terms of jurisdiction, remedies available and the recognition and enforcement of any orders made in England and Wales in other jurisdictions (and vice versa).

CONCLUSION: This may result in individuals wanting certainty commencing an action in Canada.

If you need a lawyer in Canada who understands the process in England and Wales then contact Sophie Bartholomew, who will be happy to assist you in your Canadian Family Law Matters.