BC Foreign Family Property Jurisdiction cases are complex and leave little room for error. Locating, freezing and dividing overseas family property can only occur after BC Foreign Family Property Jurisdiction is confirmed. But how is BC Foreign Family Property Jurisdiction decided?
BC Foreign Family Property Jurisdiction Lawyers
MacLean Family Law is Vancouver’s top rated* family law firm according to prestigious Top Choice Awards and our team of international family property lawyers act for numerous family law clients with substantial overseas family property. In today’s we explain how BC Foreign Family Property Jurisdiction is determined and applied.
MacLean Family Law has 6 offices in BC and in Calgary Alberta. Jurisdiction disputes require savvy senior family lawyers to prevent problems. Call us toll free at 1-877-604-602-9000 to meet with us in Vancouver, Surrey, Calgary, Kelowna Richmond or Fort St John BC.
Why Does BC Foreign Family Property Jurisdiction Matter?
In this day and age of the internet; easy international travel; and baby-boom retirement, more and more British Columbians (or their spouses) own property outside of Canada, either as investments, second homes, or the result of marrying someone from abroad.
While international marriage and property ownership can be great thing, it can also get very complicated when it comes to fairly dividing up assets or even determining the forum (e.g. the court) where those decisions will be made. If you are entering or ending a relationship in which one of you have an interest in foreign or “extraprovincial” property, consult with MacLean Law and their team of BC international family property lawyers at (604) 576-5400.
Who (Where) Decides The “Forum”
Like most aspects of this subject, the question of which court (in what country) should decide how to divide BC family property is complicated. The starting point in BC is our Family Law Act, which has an entire Division dedicated to the subject, a portion of which reads:
Division 6 — Jurisdiction and Choice of Law Rules
Determining whether to act under this Part
106 (1) This section applies if an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction.
(4) Despite subsection (2), a court may decline to make an order under this Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.
(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following:
(b) the relative convenience and expense for the spouses and their witnesses;
(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding;
(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals;
(e) the extent to which an order respecting property or debt
(i) made in another jurisdiction would be enforceable in British Columbia, and
(ii) made in British Columbia would be enforceable in another jurisdiction;
(f) the fair and efficient working of the Canadian legal system as a whole;
(g) any other circumstances the court considers relevant.
You do not have to be a seasoned matrimonial lawyer to realize that these provisions are complex and provide less than a crystal-clear roadmap for whether the BC Supreme Court will decide to hear a case.
Moreover, under our common law system, the legislation is only the starting point as case law, especially from the British Columbia Court of Appeal, ultimately determines how a statute is to be interpreted and applied in given fact situations. In practice, these court rulings are more consequential that the statutes themselves.
To ensure your best legal standing when faced with the expensive, uncertain risk of having to go a court in a foreign country to advance your position concerning international property, you need sound, seasoned legal advice from an experienced family jurisdictional dispute lawyer at McLean Law at (604) 576-5400.
Whose Law is it Anyway? – The “Governing/Proper Law”
Assuming the BC Supreme Court decides it has jurisdiction and is prepared to exercise it over the foreign property issues, it may then have to tackle the equally difficult question of what law to apply. Again, the Family Law Act has extensive provisions that guide how a court is to make that decision concerning family property (other jurisdictional statutes come into play when dealing with non-property issues such as spousal support). These include:
Choice of law rules
108 (2) If the Supreme Court takes jurisdiction under this Division, the Supreme Court must act in accordance with the rules set out in this section.
(3) Subject to subsection (4), if spouses make an agreement respecting the division of property or debt, the substantive rights of the spouses in a proceeding under this Part are determined by the agreement.
(4) The enforcement of an agreement under subsection (3) is subject to any restriction that the proper law of the relationship places on the ability of spouses to determine the division of property or debt by agreement.
(6) If neither subsection (3) nor (5) applies, the substantive rights of spouses in a proceeding under this Part must be determined according to the proper law of the relationship.
109 (1) If the Supreme Court has authority under this Division to make an order respecting extraprovincial property, the Supreme Court may make an order respecting the ownership and division of the extraprovincial property.
This is only a snippet of the legislation and its complicated stuff. The bottom line is that a BC Court may decide to apply the law of another country in deciding how to divide property. They can even split on what “governing” or “proper” law to apply, depending on this issues. This is precisely what happened in the recent BC case of Parker v. Mitchell, 2016 BCSC 723, where the British Columbia Supreme Court rejected the respondent’s contention that it either had no jurisdiction, or should decline to exercise, but then went on to determine that it would apply California law to the property issues and BC law to the issues of spousal support.
This amounted to a very consequential to the claimant as the evidence was uncontroverted that under California law, she would effectively have no property claims as an unmarried spouse, even though they lived together in a “common law” relationship for 19 years. As noted by the Court, under BC law, she clearly would have had a property interest in the many properties, including 6 in California and 8 in British Columbia.
 The FLA defines a “spouse” to include a person who has lived with another in a “marriage-like relationship” for at least two years (s. 3). If that law applies in this case, the claimant would have claims to spousal support (s. 160) and an interest in property owned by respondent (s. 84).
 According to two opinions from California lawyers filed on this application, no such rights arise under the California Family Code unless the parties were married or filed a “Declaration of Domestic Partnership” with the California Secretary of State… One of the opinions states that such claims are “difficult to prove and can only provide limited relief.”
 I therefore conclude that California was the last common habitual residence of the parties and their property rights must be decided according to the laws of California. However, the parties agree that if this court takes jurisdiction over the spousal support claim, British Columbia law would apply based on the claimant’s current residence.
The result to the parties was that ALL the property claims, even those concerning the BC properties, are going to be decided under foreign (California) law, which are very favourable to the Respondent and equally disadvantageous to the Claimant.
Risk Mitigation Strategies
Whatever your position might be – seeking a claim to foreign property, or trying to protect against those claims – there are ways to provide you some certainty as to who (which court) and how (what law) these will be adjudicated. Arrangements are also available to specifically set out in advance how all property will be divided, wherever it might exist.
Ensuring your position is protected requires experienced legal guidance. There are countless pitfalls to be faced and this is not the occasion to try and tackle a project on your own. The internet is full of templates and “do-it-yourself” agreements that turn out to be completely unenforceable or even worse.
In a future post, we will look at some real world examples of how things can go array even where legal counsel is consulted but where certain measures were not taken.
Call BC Foreign Family Property Lawyers at MacLean Law
At MacLean Law, we have skilled senior family lawyers who are licensed in foreign jurisdictions (California) and who have experience in litigation in those countries.
Our lawyers speak Mandarin Chinese, Spanish, Punjabi, Hindi, cantonese, Spanish,, Russian, French and many other languages which helps our multi lingual client base whose assets are spread across the globe.
*Top Choice Award (2014, 2016, 2017 2018, 2019), Top rated reviews on Google, Yelp, threebestrated, lawerratingz.com. Read more about our awards.