International Family Jurisdictional Disputes

Vancouver International Family Jurisdictional Disputes cases are arising more frequently given the world’s modern economy and the fact spouses today meet people around the world and fall in love them at a distance through social media. BC International family jurisdictional disputes can arise in family matters on the following issues:

1. divorce;
2. child and spousal support;
3. child custody, guardianship and parenting time and responsibilities;
4. property division; and
5. protection orders against the person and property.

Vancouver International Family Jurisdictional Disputes are so complex that immediately hiring a top* family lawyer such as the lawyers at top-rated* MacLean Law is critical. Contact Lorne MacLean, QC and the international family law dispute team. International and interjurisdictional divorces involve dealing with the family and divorce laws of multiple countries as well as how each country might enforce a foreign cour order.

MacLean Law has one of the largest and most experienced Mandarin and Cantonese fluent  International Family Jurisdictional Disputes family law teams in Canada.

International Family Jurisdictional Disputes Call 1 877 602 9900

When a court determines whether to take jurisdiction in cases involving a Vancouver or BC International Family Jurisdictional Disputes, it engages in a two-step analysis:

1. First, the court determines whether it has territorial competence (sometimes called jurisdiction simpliciter) over the dispute. The burden of establishing territorial competence rests with the party asserting its existence.
2. Second, the court determines whether it ought to exercise that jurisdiction, or whether, instead, there is another forum that is “clearly more appropriate”: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para. 103 [Van Breda]. This second step is sometimes referred to as a forum non-conveniens analysis. The burden in this analysis rests with the party asserting that another forum is clearly more appropriate: JTG Management Services Ltd. v. Bank of Nanjing Co. Ltd., 2015 BCCA 200 at para. 45.

The Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 [CJPTA]. Section 3 of the CJPTA sets out five categories which can establish territorial competence including proceedings where the spouses asked BC to make court orders in their case, a contract says BC law and BC courts govern, someone agrees to BC having jurisdiction the proceedings, a person is ordinarily resident in BC at the time the BC action is started or there is a real and substantial connection to BC concerning the facts in the family dispute.

If territorial jurisdiction is established the Court can still decline to hear the case in BC if there is a more convenient foreign court which requires the court to consider the “convenience” factors set out in s. 11 of the CJPTA.

Finally, believe it or not, different aspects of a family case may be decided in different countries which adds a whole other level of complexity in sorting out a divorce or family separation. Because spousal support and family property division are integrated, splitting them between two different courts is unwise. However, remaining issues like child custody and child support can be allocated between two different courts if there is a good reason to do so. A decision found at 2019 BCSC 881 D.L v M.Y points out some pitfalls of splitting family issues over 2 different courts:

[99]         I agree with Madam Justice Fenlon (S.R.L. v. K.J.T., 2014 BCSC 1562 [S.R.L. #2],) that a division of jurisdiction (on differing issues) should be rare. I note that dividing jurisdiction runs contrary to some of the objectives of s. 11 of the CJPTA. Two of the factors set out in s. 11 of the CJPTA are avoiding “conflicting decisions” and a “multiplicity of legal proceedings”. Dividing a proceeding into multiple jurisdictions, by definition, creates a multiplicity of legal proceedings. Furthermore, a division of jurisdiction increases the risk of conflicting decisions in terms of factual and legal determinations common to issues before both of the courts: Quanta Services, Inc. v. Rokstad Power Corporation, 2017 BCSC 1858 at paras. 23-29; Broad v. Pavlis, 2014 BCSC 1496 at para. 67.

D.L v M.Y dealt with an international family law dispute over child custody, child support, spousal support and family property division and made the unusual but sensible decision to allocate the issues of child support and child custody to BC while deciding Chinese courts would deal with interpretation of the parties prenuptial agreement on the issue of property division as well as spousal support.

Different jurisdictional dispute rules apply to the different classes of issues in family cases and our top-rated* family lawyers can guide you through the legal maze safely.

Vancouver International Family Jurisdictional Disputes – Child Custody and Parenting Call 1 877 602 9900

Justice Sharma held:

1. Applying section 74 of the FLA she held that British Columbia was clearly the most appropriate jurisdiction with respect to determining the parenting issue. The children had spent most of their lives in British Columbia where most of the evidence concerning their best interests will be. There also did not appear to be an issue of applying foreign law, and because the children are present in British Columbia, no issue of enforcement arises.
2. As the FLA does not contain any provisions regarding how jurisdiction works for the child and spousal support, jurisdiction must be determined pursuant to the CJPTA.
3. She decided she had territorial jurisdiction to decide the child support and spousal support issues because there was a real and substantial connection to BC for spousal and child support because a family home was located in BC and in Fastlicht, the existence of property in the jurisdiction was relevant to establishing a real and substantial connection with respect to spousal support: para. 92. ….Because property division and each party’s interest in assets can influence spousal support obligations, it would, in my view, be artificial to say that no real and substantial connection exists between the issue of spousal support and British Columbia when the Family Home and some of the claimant’s other assets are located here.
4. Madam Justice Fenlon, in S.R.L. v. K.J.T., 2014 BCSC 597 at para. 38 [S.R.L. #1], accepted that the residence of the spouse and the children for a significant period of time created a real and substantial connection with British Columbia. Justice Sharma similarly found that the fact that the children have lived most of their lives in British Columbia, and currently live in British Columbia, creates a real and substantial connection with British Columbia for the purposes of child support.
5. China was found to be the more convenient court to decide spousal support as it was dealing with family property and the Chinese prenuptial agreement.
6. She, however, decided that BC was the more appropriate forum to decide the issue of child support:

[90]         With respect to child support, in my view British Columbia is the more appropriate jurisdiction because it is best to determine child support in the jurisdiction where the children are residing. I am aware that the judge in British Columbia will face some of the same difficulties I have described when determining the respondent’s income for the purposes of child support. However, in my view, it is a far more daunting task to trace the respondent’s assets and income over the course of the marriage in the context of the Agreement and the applicable Chinese law than it is to estimate his capacity to pay child support under Canadian law.

BC International Family Jurisdictional Disputes Family Property

Madam Justice Sharma held that China was clearly the most appropriate jurisdiction to determine what will likely be a very complex dispute over property division and the interrelated spousal support issue because:

1. the parties have made an agreement respecting the division of property. Pursuant to the hierarchy set out by s. 108, that agreement governs. In turn, s. 108(4) provides that the enforcement of that agreement is subject to the proper law of the relationship.
2. The claimant and the children have primarily lived in Vancouver for the duration of the relationship. The respondent has primarily lived in China. The parties visited one another, with the claimant spending approximately the same total amount of time in China over the course of the relationship as the respondent has spent in British Columbia.
3. First, the parties met and married in China. Second, although the parties have visited one another, including for extended periods of time, there is no evidence that the respondent ever considered living in British Columbia on a permanent or indefinite basis – his visits were always temporary.
4. the prenuptial agreement governed the property division and invoked Chinese Law and in particular:

a)    It will be far easier for a Chinese court to interpret and apply the Agreement as well as any relevant Chinese law.

b)    It will be far easier for a Chinese court to determine the facts at issue given that the relevant documents will likely be in Chinese (save, perhaps, some of the documents concerning the purchase of the Family Home).

c)     It will be far more convenient for the parties to avoid the expense of translating what could be an extensive documentary record; and

d)    If there are any additional witnesses, besides the claimant and the respondent, they are likely to be located in China.

Call Our Senior Vancouver Family Lawyers Today 1 877 602 9900

Vancouver International Family Jurisdictional Disputes are incredibly tricky and where you file and how fast you file your family claim can be determinative of success or failure. Do not delay call our senior and experienced Vancouver Family Jurisdictional Disputes lawyers today toll-free. Don’t forget to ask us about our recent precedent-setting international family law victories.

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