International Family Law Mareva Injunctions are an advanced tool skilled international family lawyers can use to protect hundreds of millions of family and other property from being hidden or going missing. Lorne MacLean KC is a senior ultra high net worth family lawyer and a fellow of the prestigious International Academy of Family Lawyers. MacLean is one of few lawyers in Canada to obtain a worldwide Mareva Injunction over worldwide family property.
Normally, family counsel on local matters proceed with the easier to obtain a British Columbia section 91 Family Law Act property preservation Order. This order can work if the property in the UHNW family dispute is located in BC or Canada and sometimes even if the person of the family property lives in British Columbia.
But when cases involve hundreds of millions of overseas assets – some known and some secreted – a far more advanced remedy is required to protect assets from being deposed of or hidden in a family law trial. This powerful remedy is known as the International family law Mareva Injunction.
International Family Law Mareva Injunctions Tel: 604 602 9000
Manousakis v. Manousakis (1979), 10 B.C.L.R. P-21 (S.C.)), s. 39 of the Law and Equity Act, and Supreme Court Family Rule 12-4 (Mooney v. Orr, 1994 CanLII 1095 (BC SC)) establish that the court’s authority to grant a Mareva injunction is based in its inherent jurisdiction.
A International Family Law Mareva injunction is a rarely granted order, granted prior to trial often at an early stage in high conflict high stakes family cases, which freezes a respondent’s worldwide assets, whether the respondent resides in the court’s jurisdiction or not. Critically, the Mareva injunction may also require the respondent to disclose assets in order to give effect to a freezing order that would otherwise be difficult if not impossible to enforce ( see Shakeri-Saleh v. Amadi-Niri Estate, 2021 BCSC 2257 (Chambers) at para. 23).
What Must Be Proven To Obtain International Family Law Mareva Injunctions?
A party seeking this remedy faces a higher threshold test than for a FLA section 91 property preservation order and must prove the following to succeed:
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demonstrate a strong prima facie case against the respondent;
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demonstrate that there is a genuine risk that the assets will disappear either inside or outside the jurisdiction of the court prior to judgment (Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC); Manousakis); and
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give an undertaking in damages (Manousakis). (this is not required by a FLA section 91 order.)
Traditionally, a Mareva injunction is only granted in special and limited circumstances. In Northwestpharmacy.com Inc. v. Yates, 2018 BCSC 41, the court noted that courts have cautioned that the precise expression of the test may be difficult, but that the test for Mareva injunctions is “somewhat more rigorous than it is for injunctions generally” (at para. 11). In BC, Mareva Injunctions in UHNW family cases are rare and hiring a lawyer with a winning track record on Mareva Injunctions makes good sense.
MacLean Law Wins International Family Law Mareva Injunctions Tel: 604 602 9000
Lorne MacLean KC founder of MacLean Law obtained a rare International Family Law Mareva Injunctions in Devathasan v. Devathasan, 2017 BCSC 1010 and the case is regularly used by family lawyers in UHNW financial family disputes:
[48] The Respondent argues that the Mareva injunction should be set aside for a number of reasons: that it was not urgent; that it was overreaching; and that its provisions were not in accordance with the FLA, s. 109. Again, in my view, none of these arguments are persuasive.
[49] The evidence established that the Respondent was very controlling and threatening with the family finances and that he exerted this control at times to punish family members. As the Claimant put it, he ruled the family with an “iron fist”. Just prior to the granting of the Mareva injunction, the Respondent had closed or frozen some accounts, including one in the name of K.D. in Singapore.
[50] On May 26, 2016, the Respondent emailed the Claimant and told her that “divorce is inevitable.” This was further confirmed in his email to D.D. on May 28, 2016 that “[a]n official separation from you[r] mum is inevitable”. In that circumstance, I have no doubt that the Respondent expected he would be able to dictate the terms of the separation, given his overall control of the family assets and income and his previous behavior to that time. The Claimant said that during past arguments, the Respondent had threatened that she would not receive anything upon a divorce. Needless to say, that comment must be tempered by the fact that certain assets, such as the BC real property and certain expensive vehicles, are in her name. Even so, it displays a mentality on the part of the Respondent diametrically opposed to a fair sharing of the family property upon separation.
[51] On June 1, 2016, the Respondent sent a number of demands, mostly financial, to the Claimant. He further stated:
YOU HAVE EXACTLY ONE WEEK TO COMPLY WITH BELOW TO REDUCE THE FINANCIAL [BURDENS]… FAILING WHICH I WILL PROCEED WITH LEGAL SEPARATION AND YOUR CONSENT WILL NOT BE REQUIRED…Do not argue if you do not want any more unpleasant repercussions. All these I have mentioned before but you are not acting; only agitating me more and more. …
[52] The Claimant’s evidence was also that the Respondent was very secretive about the family finances to the point that she did not know what assets were actually owned by him or how the family income was being spent. Just before this action was filed, the Claimant learned that the Respondent was planning to buy another property in West Vancouver. Not only did he not disclose this to the Claimant, he told his son, D.D., not to tell his mother about it.
[53] Finally, the Claimant stated her belief that the Respondent had changed his will recently. As the Respondent’s counsel argues, such a change is not unusual when couples separate, but again it shows that he was making efforts to formalize the separation while making demands on the Claimant and not disclosing the use of family resources by him.
The bottom line is that the Respondent has displayed the character and the behavior of a man for whom immorality, selfishness and domination are second nature. He is a man with tremendous financial resources but more importantly, information about our finances. Taken together, the notion that he would learn of the divorce, which includes considerable claims for property division and support, and then refrain from taking immediate steps to transfer and otherwise safeguard his assets from the reach of this Court, is not in his nature.
[55] In my view, the above comment was supported by the evidence. The circumstances at play in August 2016 amply demonstrate that there was urgency in securing the family properties around the world before the Respondent took action to dispose of them so as to frustrate the Claimant’s entitlement and interest in the family property pursuant to the FLA, s. 81.
[56] Nor do I agree that the Mareva injunction was overly broad, save for one matter. The Respondent argues that tying up all the properties around the world was not necessary when the Claimant had more than sufficient assets in her name in North America to satisfy her claims.
In this case MacLean froze and obtained disclosure of a number of hidden assets and cash payments which were exposed at the trial leading to the highest interim and permanent spousal support awards of up to $100,000 monthly spousal, up to $21,000 a month for a single child, and a multimillion lump sum record nearing $6 million plus $1.5 million in legal fees paid to reimburse his client.
Tier 1 UHNW International Family Lawyers Tel: 604 602 9000
Contact our leading UHNW International family lawyers if you have urgent needs to protect hundreds of millions of worldwide income and assets.
