What are cross-border order and agreement enforcement issues, and when should I be concerned?
Cross-border order and agreement enforcement issues arise in circumstances where one spouse has obtained a court order, or entered into an agreement, in one country, and wants to enforce it in another. Either you are trying to enforce an order or an agreement, or you are on the losing end and if you are involved in such an issue and should seek legal advice on whether you can enforce them, or defend against them if you believe they are unfair or, due to some changes after they came into place, no longer fair.
How do I enforce foreign court orders in BC?
Generally speaking, you have to go through a process to register the foreign order in the BC court, but whether you can actually enforce the order depends on a number of factors including where the order was made, what issues they pertain to, where the opposing party is, and the circumstances around him/her.
Of particular importance is whether there are treaties or conventions between the originating country and Canada. If both countries are signatories of some conventions whereby they agreed to enforce certain types of court orders, then the enforcement process may be relatively straightforward; otherwise, it may prove to be more challenging or, in some cases, even impossible.
My spouse is living in another country. Can I obtain a court order in Canada?
The answer largely depends on where your spouse is residing and the orders you are trying to enforce.
If we conclude that the order you seek to obtain in BC is not enforceable in the country you wish to enforce it in, we will explore other options for you. It may be that you should litigate in the other country instead, or strategically prompt the opposing party to enter into an agreement which is enforceable in both countries, or we obtain compensation for you by reapportioning properties that are within BC court’s reach. No matter which case, we will help obtain the best possible result for you.
My spouse is trying to enforce a foreign court order or agreement against me in Canada, but I don’t think it’s fair. What can I do?
You can bring a court application in Canada to vary or set aside the agreement or the court order. If you win, you will be no longer bound by the court order or agreement.
There are many factors that will influence the outcome of your case. If it is an agreement that you are trying to defend against, those factors include:
- Whether it has clauses where you agreed to resolve the disputes arising from it in one specific jurisdiction or under one specific law;
- Did you enter into the agreement voluntarily and in a fair fashion?
- Did anyone subsequently breach the agreement, and if so, what are the remedies available under the applicable legal system?
In the event you are trying to challenge a foreign court order, you will be asking questions such as:
- Is the court order a final order?
- Was the foreign court tricked into thinking that it has the jurisdiction (authority) to make that order, while it does not?
- Are there aspects of the foreign legal system that you believe so grossly unjust or unfair, that would make enforcing the order contrary natural justice?