Beijing Shanghai Vancouver Mandarin Family Lawyers handle high net worth divorce and family law cases involving corporations, substantial real estate assets and investments in China and British Columbia.
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Our highly ranked* Beijing Shanghai Vancouver Mandarin family lawyers at MacLean Law headquartered here in Vancouver understand the complexity involved in these interjurisdictional family law disputes. Led by Lorne N. MacLean, QC one of Canada’s most senior and highly rated* family lawyers, we turn help clients turn family difficulties into opportunities to resolve matters and move forward. We are experienced in handling complex international family property, company and real estate disputes. We work with international family law firms who have offices across China including partners at Dentons, and we look forward to working together with these respected family lawyers on family law cases involving China, BC and Calgary international family law disputes.
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Beijing Shanghai Vancouver Mandarin Family Lawyers Explain Steps In Deciding Jurisdiction – First Territorial Jurisdiction Is Decided
In Parker v Mitchel 2016 BCSC 723, the judge hearing the high net worth family case faced multijurisdictional issues as both BC and California had jurisdictions over spousal support and property division, and Mr Justice N. Smith set out the steps of analysis on such issues:
Step 1 – Whether the court has the jurisdiction to make an order (Territorial Jurisdiction)
13 On the question of whether the court may make an order, both statutes adopt a test of real and substantial connection and specify circumstances under which that connection is deemed to exist. The relevant section of the FLA is s. 106:
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.
(2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:
(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started;
(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.
(3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:
(a) property that is the subject of the proceeding is located in British Columbia;
(b) the most recent common habitual residence of the spouses was in British Columbia;
(c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia.
Beijing Shanghai Vancouver Mandarin Family Lawyers – Second Which Countries Law Will Apply?
Step 2 – The Law to Be Applied Matters
28 The fact that the court has jurisdiction does not mean it will be exercised. Section 11 of the CJPTA and s. 106(4) and (5) of the FLA both give the court discretion to decline jurisdiction if the matter would be more appropriately decided by a court outside British Columbia.
29 One of the factors that must be considered is the law to be applied. It is therefore necessary to deal with that issue before returning to the question of how the discretion will be exercised.
30 Sections 107 and 108 of the FLA read:
107 The proper law of the relationship between the spouses for the purposes of section 108 [choice of law rules] is
(a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence,
(b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or
(c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident.
108(1) In this section, “regime of community of property” means a system of law, including a regime of partnership of acquests, in which property owned or acquired and debt owing or acquired during the relationship between the spouses
(a) are deemed to be owned or owing by both spouses, and
(b) are divided, on separation of the spouses, as if both spouses equally owned the property or owed the debt,
but does not include a regime of separate property or a system of law under which a spouse’s interest is deferred until or after the occurrence of an event that signifies the end of the relationship between the spouses.
(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.
(5) Subject to subsection (3), if the spouses’ first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the relationship between the spouses according to that regime of community of property.
(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.
Beijing Shanghai Vancouver Mandarin Family Lawyers – Finally Where is The Best And Most Convenient Court Found?
Step 3 – Discretion to Decline Jurisdiction (Forum Conveniens)
41 The provisions of the FLA governing the court’s discretion to decline to exercise its jurisdiction are s. 106 (4) and (5):
106 . . .
. . .
(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.
At the end, the court decided it would not a problem to decide the case in British Columbia based on California law, after considering the factors under s.106(5) .
Beijing Shanghai Vancouver Mandarin Family Lawyers Need To Be Contacted Fast To Select The Right Place To Get Justice
OUR VANCOUVER MANDARIN SPEAKING FAMILY LAWYERS CAN HELP
If you are faced with a dispute on international family issues, dial our Mandarin Line at 604 682 6466, or toll-free at 1 877 602 9900 now to see how our dedicated Beijing Shanghai Vancouver family lawyers can help you win your case.
Lorne N. MacLean, QC founder of MacLean Law welcomed Michael Ma, Shanghai Partner at Dentons, to our waterfront Vancouver headquarters to discuss international family law.
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