BC Mandarin Family Jurisdictional Challenge Response Lawyers act on behalf of international family law clients who have significant assets, children and who earn income abroad including Mainland China, Hong Kong, Taiwan and the USA.
MacLean Family Law has Vancouver’s largest award winning BC Mandarin Family Jurisdictional Challenge Response Lawyers. Several of our lawyers are native Mandarin Chinese speaking lawyers and a number of our lawyers are familiar with the Chinese legal system. 中文国际离婚律师
BC Mandarin Family Jurisdictional Challenge Response Lawyers Discuss Crucial Preliminary Issues in an International Divorce
Our Top-rated* Mandarin speaking BC Mandarin Family Jurisdictional Challenge Response Lawyers lawyers warn that an international divorce is not “just another divorce” except that it involves parties and assets from multiple countries.
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Our BC Mandarin Family Jurisdictional Challenge Response Lawyers know it is in fact a complex legal battle posing a unique set of challenges and demanding extensive experience and intimate knowledge of the applicable law. 中文国际离婚律师
Jurisdictional challenges and jurisdictional response forms our BC Mandarin Family Jurisdictional Challenge Response Lawyers file in BC are a great example to illustrate how complex international divorces often are, and why you need lawyers with extensive experience in this area and full capacity to speak your own language – such as the top-tier* Mandarin-speaking BC Mandarin Family Jurisdictional Challenge Response Lawyers at MacLean Law – to handle your case.
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This is especially so for high net-worth individuals, as they typically own companies and real properties across different jurisdictions on the globe.
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If you are in the middle of an international divorce, we encourage you to contact our highly-regarded Mandarin-speaking lawyers, either through our Mandarin line: 604 682 6466, or toll-free number: Call us toll free at 1-877-602-9900, and see how we can resolve your matter effectively.Click here for our dedicated Mandarin Chinese and Cantonese website. 中文国际离婚律师
We have offices in Downtown Vancouver, Richmond, Surrey, Kelowna, Fort St John and Calgary, and are happy to meet you at a location that is most convenient for you.
In today’s blog, our Mandarin-speaking lawyer Jian Kang navigates through recent court decisions and highlights for you some preliminary issues to identify and examine before engaging in a lengthy analysis under the Family Law Act. Each of these issues is of such import that it may single-handedly decide the ultimate outcome of your case.
BC Mandarin Family Jurisdictional Challenge Response Lawyers Explain Impact Of Ruling from a Foreign Court
The first issue is whether there has already been a ruling a foreign court on the same issues. Although this is one of the factors to be considered in the analysis under the Family Law Act, as seen below, it is of such import that judges sometimes decline to exercise jurisdiction based on the presence of foreign decision alone, before embarking on a lengthy Family Law Act analysis.
If there is an existing court order issued by a foreign court that is not in your favour, and you are asking the B.C. Court to set aside that order and re-decide on the same issues, chances are that the B.C. court will decline to exercise jurisdiction (even if it has it), as courts usually frown upon re-litigating on the same issues in a different jurisdiction just to avoid unfavourable decisions, an activity commonly referred to as “forum shopping,” unless you can establish that you fit in one of the few exceptions to this rule, for example, that the legal system of the issuing court as a whole is so unfair and against natural justice that the B.C. court must “step on the toes of another court” to preserve justice.
Recent Case Explains Approach For BC Mandarin Family Jurisdictional Challenge Response Lawyers
In Ma v. Li, 2016 BCSC 469, the Court declined to exercise jurisdiction on issues that were already decided by the Chinese court:
[30] In consideration of these factors, I find that this Court should refrain from exercising its jurisdiction in this family law proceeding for the reasons that follow.
[31] The Chinese Court has issued final orders respecting the family property and other matters in dispute between the parties to this proceeding. As a result, it would not be useful to permit multiple proceedings that could result in conflicting decisions in different courts. The Chinese Court relied on the Separation Agreement and found that there were no disputes among the parties as to the division of property under that agreement. It would be inappropriate to permit Mr. Ma to initiate proceedings to vary the Separation Agreement and seek to essentially set aside the orders of the Chinese Court by applying for relief in a different jurisdiction.
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[35] In the circumstances before me, I find that the fair and efficient working of the Canadian legal system requires this Court to respect the jurisdiction and orders of the Chinese court. It does not benefit our system to permit parties who are dissatisfied with court orders handed down in another jurisdiction to use our legal system as a means of appeal, or as a way to initiate new proceedings to mount another attack on issues that have been decided. To permit Mr. Ma to act as he has in this case would undermine the fair and efficient working of the Canadian legal system.
BC Mandarin Family Jurisdictional Challenge Response Lawyers Explain Impact Of Forum Selection Clause in Family Law Agreement
This is another issue that must be identified and examined thoroughly in the preliminary stage, especially there is a family law agreement containing a “choice of forum clause” (where the parties to the contract expressly set out where to resolve any disputes arising from the contract) and a “choice of law clause” (where the parties set out which law governs the contract – usually the law of the forum of their choice, if there is one).
As a general principle, Canadian courts do not take jurisdiction to resolve issues arising from a family law contract (or any contract general) if the parties expressly set out in the same contract that they will resolve disputes in another forum, even if one party claims that the contract has been breached or is void.
In Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 SCR 450, 2003 SCC 27, the leading case, the Supreme Court of Canada held:
21 There is a similarity between the factors which are to be taken into account when considering an application for a stay based on a forum selection clause and those factors which are weighed by a court considering whether to stay proceedings in “ordinary” cases applying the forum non conveniens doctrine: E. Peel in “Exclusive jurisdiction agreements: purity and pragmatism in the conflict of laws”, [1998] L.M.C.L.Q. 182, at pp. 189-90. The latter inquiry is well settled in Canada: Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897. In the latter inquiry, the burden is normally on the defendant to show why a stay should be granted, but the presence of a forum selection clause in the former is, in my view, sufficiently important to warrant a different test, one where the starting point is that parties should be held to their bargain, and where the plaintiff has the burden of showing why a stay should not be granted.
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31 Issues respecting an alleged fundamental breach of contract or deviation therefrom should generally be determined under the law and by the court chosen by the parties in the bill of lading. The “strong cause” test, once it is determined that the bill of lading otherwise binds the parties (for instance, that the bill of lading as it relates to jurisdiction does not offend public policy, was not the product of fraud or of grossly uneven bargaining positions), constitutes an inquiry into questions such as the convenience of the parties, fairness between the parties and the interests of justice, not of the substantive legal issues underlying the dispute. See Mackender v. Feldia A.G., [1966] 3 All E.R. 847 (C.A.), per Lord Denning, at pp. 849-50, and per Lord Diplock, at p. 852. Put differently, a court, in the context of an application for a stay to uphold a forum selection clause in a bill of lading, must not delve into whether one party has deviated from, or fundamentally breached an otherwise validly formed contract. Such inquiries would render forum selection clauses illusory since most disputes will involve allegations which, if proved, will make the agreement terminable or voidable by the aggrieved party. Moreover, while the choice of forum for the determination of the existence of the agreement would be made without reference to the forum selection clause in the contract, if the agreement were found to remain intact, resort to the said clause would presumably be necessary to decide the appropriate forum in which to settle the rights of the parties under the agreement.
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34 In the case at bar, it is unnecessary to determine whether there has been a fundamental breach or deviation because the forum selection clause clearly covers such a dispute. The language of the clause is unambiguous and not subject to any qualifications, and the parties’ bargain was not unconscionable or unreasonable. The clause becomes relevant precisely in disputes such as this one, as it regulates the way in which liability for deviation or breach of contract is to be established.
In Douez v. Facebook, Inc., 2015 BCCA 279 (leave to SCC granted), the BC Court of Appeal held that, essentially, the presence of a forum-selection clause in a commercial contract may be a stand-alone factor that should be analyzed independently from, and before the relevant sections of the Court Jurisdiction and Proceeding Transfer Act (CJPTA)
[27] In Viroforce, this Court held that the Pompey test is a separate inquiry. Mr. Justice Tysoe for the Court did not refer to Teck. He relied on Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722 (CanLII) at paras. 35-39, reasoning as follows (at para. 14):
In my opinion, the [CJPTA] does not alter the general approach to be taken when the parties agree to a forum selection clause. If it is determined or assumed that the British Columbia court has territorial competence, the issue is whether the court should decline jurisdiction, either because the forum selection clause ought to be enforced or a consideration of the factors contained in s. 11 of the [CJPTA] leads to the conclusion that a court in another jurisdiction is a more appropriate forum. The existence of a forum selection clause can, by itself, be sufficient reason for a court to decline jurisdiction, and it is not simply one of the factors to consider in making a determination under s. 11. It will not be necessary in all cases to first determine whether there is territorial competence because it may be clear that the forum selection clause will govern the outcome of the matter.
[31] I consider that we are bound by Viroforce and Preymann. In B.C., when the defendant relies upon a forum selection clause, the Pompey test is a separate, standalone inquiry that is conducted first. The CJPTA analysis may be conducted second, if necessary.
FLA Rules For BC Mandarin Family Jurisdictional Challenge Response Lawyers
Since the wording of the relevant sections of the Family Law Act (s.106) is almost identical to the corresponding section of CJPTA (s.11), it should not be a far stretch to extend the rationale of this case to cover a family law agreement, granting the judge the discretion to decline jurisdiction based on the presence of a “forum selection clause” alone, before engaging in any Family Law Act analysis at all.
Conclusion – BC Mandarin Family Jurisdictional Challenge Response Lawyers Can Help In This Complex Area
Experienced lawyers such as our Mandarin-speaking BC Mandarin Family Jurisdictional Challenge Response Lawyers know that it is crucial to go through the said preliminary issues – any many more – before engaging in a full-fledged legal war. Often hidden to those with less experience, they can be either valuable weapons to win your case artfully and with minimized costs, or fatal traps around which you must carefully plan your routes. Either way, the top-notch* Mandarin-speaking lawyers at MacLean Law, personally led by the firm’s founder Mr. Lorne MacLean Q.C. himself, will help you navigate through the highly-complex legal landscape surrounding international divorces and effectively achieve your goal by offering you experience-based strategies, practical advice and powerful advocacy in and outside of the court.
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Do not hesitate to speak to our skilled BC Mandarin Family Jurisdictional Challenge Response Lawyers by dialling our Mandarin line: 604 682 6466, or toll-free number: Call us toll free at 1-877-602-9900, and request an initial consultation at one of our offices in Downtown Vancouver, Richmond, Surrey, Kelowna, Fort St John and Calgary. 中文国际离婚律师
