Is my Chinese foreign family law judgment enforceable in BC?
Chinese Foreign Family Judgment Enforcement Lawyers deal with cases where foreign family law judgments may or may not be enforceable in BC. The savvy Chinese Foreign Family Judgment Enforcement Lawyers at MacLean Family Law also handle multi-million dollar cases where BC courts need to determine whether BC should take jurisdiction or let some other country’s legal system decide family disputes between spouses who have spread their wealth and ventures across many continents and countries. MacLean Law has one of Western Canada’s largest Mandarin and Cantonese Chinese fluent family law departments.
In today’s blog, high net worth family and divorce lawyer Lorne N. MacLean, QC,, reviews a recent BC Supreme Court decision where the judge commented on how assessing credibility in a trial involving the use of interpreters severely compromises a judge’s ability to assess who is telling the truth. In this year’s decision of Wei v Mei the Judge also dealt with use of foreign court documents and decisions made by a Chinese tribunal. There is a procedure for a person who obtains an Order in a foreign country to have it enforced here in BC. This procedure requires the court to assess the type of Order, how it was obtained and whether there is any reason not to enforce.
Chinese Foreign Family Judgment Enforcement Lawyers
With wealthy family clients living in multiple jurisdictions who have their vast wealth spread across the globe, we are bound to have disputes worldwide. When they do, what court should take charge and if it does take charge what should it deal with- all assets and issues or only a limited number? Here is what the new BC case decided on this critical issue:
[55] A court enforcing a foreign judgment is enforcing the obligation created by that judgment. In principle, the enforcing court should not look beyond the judgment to the merits of the case. See Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52. Chief Justice McLachlan elaborated as follows at para. 89 of Pro Swing:
Before discussing the considerations applicable in this case, it may be useful to reiterate the theoretical basis for the recognition and enforcement of foreign judgments. While established in the context of money judgments, the theory also applies to the enforcement of non-money judgments. The foreign court order is seen as creating a new obligation on the defendant. In the case of a money judgment, this is a debt. In the case of a non-money judgment, it is a different sort of obligation. A court enforcing a foreign judgment is enforcing the obligation created by that judgment. In principle, it should not look beyond the judgment to the merits of the case. It enforces the obligation created by the foreign judgment by its own machinery. As confirmed in Beals, as long as the foreign court properly has jurisdiction to adjudicate the dispute, absent evidence of fraud or a judgment contrary to natural justice or public policy, the enforcing court is not interested in the substantive or procedural law of the foreign jurisdiction. All the enforcing court needs is proof of the foreign order; its own legal mechanisms take over from there. This can be understood as the principle of the separation of judicial systems.
Is my Chinese foreign family law judgment enforceable in BC? Test explained
The Chief Justice was writing in dissent, but the views she expressed, quoted above, are consistent with the majority reasoning in Pro Swing.
[56] A foreign judgment is recognized and enforceable in British Columbia if three requirements are met:
(a) the foreign court had jurisdiction over the subject matter of the foreign judgment;
(b) the foreign judgment is final and conclusive; and
(c) there is no available defence.
See Beals v. Saldanha, 2003 SCC 72.
Is my Chinese foreign family law judgment enforceable in BC? Jurisdiction
[57] The foreign court will be found to have had jurisdiction if there is a “real and substantial connection” between the cause of action and the foreign court. See Beals at para. 19. A defendant can reasonably be brought within a foreign court’s jurisdiction if he or she was actively involved in the relevant events in the foreign jurisdiction. See Beals at para. 32. There can be no dispute in this case that the Chinese Court had jurisdiction over the matter. The two loans were made in China. The guarantees were signed in China. Fenghui Ltd. is a Chinese company registered in accordance with Chinese law. Mr. Mei resided and conducted his business primarily in Tangshan. Ms. Li, although she resides at present in Vancouver, at least partly to be here for her children’s school terms, has held positions in numerous Chinese companies and had many personal and business ties to Tangshan. There is no dispute that she signed her guarantee in Tangshan. Furthermore, Fenghui Ltd., Mr. Mei and Ms. Li attorned to the jurisdiction of the Chinese Court, participating at every stage, including commencing the Petition for Retrial.
Is my Chinese foreign family law judgment enforceable in BC? Order Must Be Final and Conclusive
[58] It is clear that the Chinese Judgments are final and conclusive. No appeal is available under the Civil Procedure Law of the People’s Republic of China because the April 2014 Chinese Judgment is a consent order based on a mediated settlement. The fact that the Chinese Judgments are final and conclusive is also evidenced by the enforcement measures taken by the Chinese Court from June 2014 to the present. The Defendants only step to challenge the Chinese Judgments was their Petition for Retrial. As noted earlier, that Petition was heard on May 8, 2017 and dismissed on May 10, 2017.
Is my Chinese foreign family law judgment enforceable in BC? No Defences Available
[59] The third issue in determining whether a foreign judgment is enforceable here is whether there are available defences with respect to that judgment. It is common ground that a foreign judgment is unenforceable only if:
(a) it is inconsistent with a prior judgment;
(b) it was obtained by fraud;
(c) it is based on a foreign penal, revenue or other public law; or
(d) it is based on a foreign proceeding that was conducted in a manner contrary to natural justice.
[60] Clearly the Chinese Judgments are not inconsistent with any prior judgment and clearly they were not based on a foreign penal, revenue or other public law.
Chinese Foreign Family Judgment Enforcement Lawyers: No Fraud
[61] As for fraud, Ms. Li abandoned fraud in the course of the summary trial application. Quoting from her written submission:
In particular, Ms. Li does not advance a defence based on fraud, whether intrinsic or extrinsic. That defence and supporting expert evidence are advanced entirely by Mr. Mei, her husband.
Frankly, I have sometimes found it difficult to keep up with the fluctuating positions of the Defendants. Ms. Li relied on Mr. Wei’s alleged criminal fraud against Fenghui Ltd. when she sought a stay of the Mareva injunction. She joined her husband earlier in this proceeding in arguing that Fenghui Ltd. did not obtain the second loan. Both those positions now appear to be abandoned. Similarly, Ms. Li had testified that the first Power of Attorney for Ms. Dong was something she never authorized. Again, she asks this Court to simply ignore that she testified to that effect, but no longer takes that position.
[62] However, Mr. Mei continues to allege fraud.
[63] Courts in Canada have drawn a distinction between “intrinsic fraud” and “extrinsic fraud”. Intrinsic fraud goes to the merits of the case and the existence of a cause of action. Extrinsic fraud goes to the jurisdiction of the issuing court, including fraud which misled the issuing court into mistakenly believing that it had jurisdiction over the cause of action.
[77] In summary, the Chinese Court had jurisdiction over the matter which is the subject of the foreign judgment, the foreign judgment is final and conclusive, and there is no valid defence. The available defences would be that the Chinese Judgments were inconsistent with a prior judgment; they were obtained by fraud; they were based on a foreign penal, revenue, or other public law; or the proceedings were conducted in a manner contrary to natural justice. I have found above that none of those defences apply to the facts of this case.
In the end the Court ordered the Chinese judgment to be enforced with the condition that any figure for interest being enforced could not exceed the maximum interest rate allowed by law in Canada.
Is my Chinese foreign family law judgment enforceable in BC? Hire MacLean Family Law in Vancouver, BC
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