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BC Interjurisdictional Family Property Lawyers

Vancouver China Family Property Dispute Lawyers
 

BC Interjurisdictional Family Property Lawyers at MacLean Law point out that in today’s modern and mobile society separating spouses can have substantial family property spread across the globe. Our Mandarin Chinese BC Interjurisdictional Family Property Lawyers deal with multimillion dollar property division cases daily. Our Mandarin Chinese fluent lawyers and staff form the largest Mandarin Chinese speaking family lawyer team in Western Canada.

If you are involved in a interjurisdictional family law dispute involving family conflict of law questions you would be wise to contact our experienced team of BC Interjurisdictional Family Property Lawyers. Click here to meet with us and if you prefer Mandarin Chinese fluent lawyers simply click on the link to go to our full Chinese language family law site.

BC Interjurisdictional Family Property Lawyers

Lorne MacLean, QC founder BC Interjurisdictional Family Property Lawyers 604-682-6466

BC Interjurisdictional Family Property Lawyers 604-682-6466

Our BC Interjurisdictional Family Property Lawyers liked the cogent summary of the law from the first Court of Appeal decision on international property division jurisdiction in Jiang v. Shi 2017 BCCA 276.

As Jiang v Shi points out, a person claiming family property division relief in BC has the onus of proving BC has jurisdiction to hear and decide an international family property division dispute. Even then, a defendant can try to prove a more convenient overseas forum exists to decide the dispute before BC will ultimately decide to exercise jurisdiction. What law, what place are the parties more connected to, where are the witnesses, where are the assets located and other factors are all considered by a BC court before it decides to exercise international family property division jurisdiction.

You can read related articles by our Top Choice Rated Best Vancouver Family lawyers on international family property division here.

Chinese and BC Interjurisdictional Family Property Lawyers

[1]             This appeal requires consideration of the principles to be applied under the Family Law Act, S.B.C. 2011, c. 25 (“FLA”), to determine when it is appropriate to decline jurisdiction over a claim for division of family assets.

[2]             The parties to this appeal were married in China, have lived in China and British Columbia during their marriage, separated in 2014 and now live separate and apart in China. The appellant wife (“the Wife”) has maintained a residence in British Columbia and seeks to have the division of family property adjudicated in British Columbia, although she has begun proceedings in China to seek orders in relation to certain Chinese assets. The respondent husband (“the Husband”) takes the position that the Court should decline jurisdiction in favour of the courts of China.

[3]             Since the coming into force of the FLA in 2013, jurisdictional disputes in relation to property division in matrimonial proceedings must be determined by reference to Division 6 of Part 5 of the FLA, titled Jurisdiction and Choice of Law Rules. These provisions provide a codification of the rules for determining whether British Columbia courts have authority to make an order, whether, if they have such authority, they should nonetheless decline jurisdiction, and what choice of law rules apply.

[4]             In deciding whether to decline jurisdiction under s. 106(5) of the FLA, a court must consider the relative convenience and expense for the spouses and their witnesses, the law to be applied to issues in the proceeding, the desirability of avoiding a multiplicity of proceedings or conflicting decisions, the enforceability of orders made in the alternative jurisdictions, the fair and efficient working of the Canadian legal system as a whole, and any other circumstances the court considers relevant.

[24]         Thus, the first question to be asked when jurisdiction is called into question because of cross-border elements is whether an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction. If the answer is yes, the determination as to whether the Court has authority to make an order to resolve the dispute and, if so, whether to exercise jurisdiction must be made “solely by reference to” section 106: s. 106(6).

BC Interjurisdictional Family Property Lawyers Explain How BC Decides First If It Has Jurisdiction

One of the main factors in an international divorce and family property dispute is what law of what country should apply. Having a stange country apply the law of another country is not the most efficient way of delivering justice to separating parties.

[25]         Subsection 106(2) sets out four conditions for the assumption of jurisdiction. One of these conditions must be met for the Court to assume jurisdiction over the dispute.

[26]         If the Court determines that it has authority to make an order, a separate question may arise as to whether jurisdiction should be exercised in the particular case. This was the question that divided the parties in the case at bar. Subsections 106(4) and (5) set out the considerations for this determination.

[38]         The evidence before the chambers judge was that most of the family property was in China and that the Husband had transferred title to all or substantially all of the British Columbia assets to the Wife. The principal concern expressed by the Wife is her belief that the Husband has transferred family assets to Ms. Xian not only in China, where the Wife has sued for relief, but also in Canada. No action has been started in Canada against Ms. Xian, who on the evidence before the chambers judge, resides in China.

[89]         Here, the parties were married in China, lived the majority of their married life in China, and separated in China. China is the jurisdiction most closely associated with their relationship. Accordingly, the internal law of China is the proper law of the relationship.

BC Interjurisdictional Family Property Lawyers Explain That Avoiding Multiple and Conflicting Court Decisions Is A Key Factor

[91]         The third factor is the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals: s. 106(5)(d).

[92]         As the Wife has already started proceedings in China to attempt to trace family assets that she believes the Husband has hidden in China, the risk of multiple proceedings or conflicting decisions in different courts will be avoided if all the matters relating to family property are heard in China.

BC Interjurisdictional Family Property Lawyers – BCCA Says China was Proper Place to Decide Dispute

In the end result the BC Court of Appeal decided China was the most convenient forum to decider the issue given that proceedings were started there, the law of China applied and most of the millions of dollars of family property were located there.

Call our skilled and senior BC Interjurisdictional Family Property Lawyers at 1-877-602-9900 or at 604-682-6466 for our Chinese family law lawyers. now if you face a high stakes international family property, support and custody dispute.



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