Our Vancouver China Family Property Dispute Lawyers handle multi-million dollar Vancouver China Family Property Disputes involving company and real property in BC and in Taiwan, Hong Kong and Mainland China. In a recent BC case involving a wife who started an action in Hong Kong and a second action in BC just to file a certificate of pending litigation against real property in BC , the court provided a review of the law for our Vancouver China Family Property Dispute Lawyers and our Mandarin speaking family law clients.

中文專線：604 682 6466我们携手合作  

MacLean Law has Western Canada’s largest and amongst the most experienced  Mandarin and Cantonese fluent family lawyer team. If you have an international family property dispute involving China, Taiwan, Hong Kong the USA or any other jurisdiction as well as BC it makes sense to hire one of our experienced Vancouver China Family Property Dispute Lawyers. Lorne N. MacLean, QC leads our high net worth family law team. 

Vancouver China Family Property Dispute Lawyers 604-602-9000

In the BC Supreme Court decision of Shinatani v. Tang 2017 BCSC 1938  the court had to decide whether BC or China was the better place to have the spouse’s’ family dispute decided. Our Vancouver China Family Property Dispute lawyers handle family property cases involving companies, real estate,  investments and more where the property is in BC in China or anywhere else in the world.

As we will see below, the jurisdiction to decide the case and the law to be applied depends on where the parties married, where they made an agreement, where they are most substantially connected and other factors related to the efficiencies in resolving the family dispute.

Vancouver China Family Property Dispute Lawyers – Burden Jurisdiction

[39]         The Court of Appeal recently considered the application of this provision in Jiang v. Shi, 2017 BCCA 276. Hunter J.A., writing for the Court, began his analysis by noting that the burden of proof in any jurisdictional dispute was on the party seeking to displace the initiating party’s choice of forum. He held it to have been an error for the chambers judge in that case to reverse that onus (at para. 60).

[40]         That means that Mr. Tang bears the burden of showing that this Court lacks jurisdiction in the circumstances of this case.

[41]         Ms. Shinatani relies on s. 106(2)(d). She says there is a “real and substantial” connection to British Columbia based on s. 106(3)(a) – i.e., the subject of the action is property located in British Columbia.

[42]         Although a connection to British Columbia is stated to be presumed if any of the factors set out in s. 106(3) apply, the presumption has been held to be a rebuttable one.

[43]         In Aleong v. Aleong, 2013 BCSC 1428, a pre-FLA case, this Court had occasion to consider how the presumption might be rebutted where, as here, the alleged connection to British Columbia was based on a claim to property situate in British Columbia. The case involved a claim like this one seeking division of property following the breakup of a marriage. Adair J. held that the alleged connection to British Columbia failed where most of the property in question was outside British Columbia, even if assets worth more than $250,000 were here. She stated as follows (at para. 96):

[96]  There would be no question that the B.C. Court would have jurisdiction if Ms. Aleong’s claims were limited to movable property in B.C. However, they are not. But does this matter? Is it sufficient to establish territorial competence that part of a family law case relates to movable property in B.C.? Such a rule offers the benefits of simplicity and certainty. But is it consistent with order and fairness? Would having an old beater of a car and a small amount (say, $1,000) in a bank account in B.C. be enough to establish jurisdiction based on the presumption in s. 10(a) of the [predecessor legislation], even if all other assets in issue were outside of B.C.? Would it establish a real and substantial connection with the forum?

[Emphasis in Aleong.]

[44]         The dilemma posed by Adair J. does not arise in this case, given that this action is indeed limited to the Property, which is entirely in British Columbia. Mr. Tang argues that this case also involves assets outside British Columbia that are more valuable than the Property, which makes this case like Aleong. I do not agree. Even if Mr. Tang’s other assets outside British Columbia were relevant to this inquiry despite the narrowness of the claim advanced by Ms. Shinatani in this action, there is insufficient evidence before the court as to the value of those other assets to rebut the presumption of an adequate connection.

[45]         I therefore find that this Court has jurisdiction under s. 106(2)(d).

Vancouver China Family Property Dispute Lawyers – Convenient Forum?

Our Vancouver China Family Property Dispute Lawyers understand that most cases meet the test of bare jurisdiction but many cases our Vancouver China Family Property Dispute Lawyers are involved in can result in BC delcining jurisdiction

[46]         Having made that finding, I must consider next if under s. 106(4) it is more appropriate for jurisdiction to be exercised in Hong Kong, having regard to the factors set out in s. 106(5). Once again, the burden of proof is on Mr. Tang to show that the foreign forum is the more appropriate one: Jiang at para. 77. His burden is eased considerably in circumstances such as these, however, where both parties have agreed that Hong Kong is the more appropriate forum and litigation is already well underway there.

[47]         The main question that must be answered in this respect is whether Ms. Shinatani’s pursuit of her claim in Hong Kong constitutes a complete bar to maintaining a parallel action in British Columbia. Mr. Tang argues that it does, because both the legislation and the jurisprudence manifest a clear policy of discouraging multiple suits in different fora over the same subject matter. While that may be so, Ms. Shinatani argues that the policy has only limited application in this case because she has no intention of actually litigating her claim here. She adds that the legislation treats that policy as just one of several factors to be considered, with no single factor being decisive on its own.

[48]         I agree with Ms. Shinatani that the legislation requires that I consider all of the factors listed in s. 106(5) in deciding this issue. I therefore turn to those factors next.

Avoiding Multiple Proceedings Important Explain Vancouver China Family Property Dispute Lawyers

[64]         This is the main ground that Mr. Tang asserts in urging this Court to decline jurisdiction.

[65]         There are indeed many decisions of this Court and the Court of Appeal, under the FLA and its predecessors, holding that a spouse who has already commenced proceedings and obtained orders in a foreign court should generally not be permitted to bring separate proceedings in British Columbia addressing the same dispute. Stays have been ordered on grounds of forum non conveniens even where the dispute concerns real property in British Columbia against which the claimant has filed a CPL in order to protect an alleged interest in that property.

[82]          As in this case and Monteiro, Russell J. found that she had jurisdiction based, among other things, on the connection to British Columbia flowing from the husband’s claim to an interest in the two properties in Vancouver. As in Monteiro, Russell J. declined to exercise that jurisdiction and ordered the proceedings stayed having regard to the factors in s. 106(5), particularly (d), (e) and (f). In particular, she found, relying on Monteiro, that the parties had already submitted their dispute to the court in China and it would cause undue confusion to allow the husband to seek inconsistent relief here. In the result, she also ordered the CPL removed as a corollary to the dismissal of the claim (at para. 41).

[83]         These authorities strongly suggest that this case too should be dismissed or stayed on the same basis. The claimants in both Ma and Monteiro were able to show much stronger connections to British Columbia than Ms. Shinatani is able to show here. Moreover, the argument that a British Columbia action should be allowed to continue in order to permit a claimant to retain a CPL, in the face of an active foreign proceeding underway in a more appropriate forum, was specifically considered and rejected in Monteiro.

87]         As held by both Burke J. in Monteiro (at para. 31) and Russell J. in Ma (at para. 34), one factor weighing against assuming jurisdiction is the fact that a foreign order calling for division of real property in British Columbia may be enforced in this Province under s. 10(k) of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28.

99]         I find, in light of those authorities, that it was not necessarily improper for Ms. Shinatani to commence this action for the purpose of registering the CPL and securing her claim to the Property, notwithstanding her intention to proceed with the litigation only in Hong Kong.

100]     Although that consideration weighs in favour of allowing Ms. Shinatani to preserve this action and its associated CPL, there is a second systemic concern that weighs in the opposite direction.

[101]     Allowing Ms. Shinatani to proceed as she proposes has the potential to create a problematic precedent in other cases. It should not be open to claimants in Ms. Shinatani’s position to commence and maintain a parallel action in a forum that is acknowledged to be other than the appropriate one, simply to support a charge on title to property that happens to be situate in that jurisdiction. Such a precedent could open an unintended back-door to the assumption of jurisdiction in all such cases, allowing for an improper end run around the legislated jurisdictional constraints.

Vancouver China Family Property Dispute Lawyers – BC Action Dismissed

[104]     From the foregoing discussion, it is apparent that the factors in s. 106(5) militating against assuming jurisdiction outweigh those militating in favour. I have therefore concluded that it would not be in interests of the parties or conducive to the ends of justice for this Court to assume jurisdiction in this case.

[105]     Although I have determined that this Court has jurisdiction over the claim under s. 106(2), I decline under s. 106(4) to exercise it on the basis that jurisdiction is more appropriately exercised in Hong Kong.

[106]     It follows that the associated CPL registration should also be cancelled.

Call our Vancouver China Family Property Dispute Lawyers now at 604-602-9000.