International Family Law: Ovchinnikova v Stevens

Jurisdiction cases typically invoke a number of key facts that are presented to the court to persuade the judge of an apparent or alleged connection that either warrants or denies jurisdiction.

What follows are some of the types of facts that commonly come up in jurisdiction cases to show a stronger connection with one country or state over the other– what we often refer to as a “real and substantial connection”:

• Nationality of the parties and the children, including their birth certificates, passports, and visas
• Place of residence for the parties and the children, and how long they have lived there
• Where the parties were educated and where they married
• Where the parties work and how long they have worked there
• Countries to where the parties pay taxes, hold bank accounts, own property, and have investments
• Countries that have issued the parties’ drivers licences, health cards, and vehicle registrations
• Dates of movement to another country or return to BC
• Locations of children’s schools, and how long they attended school in one country or the other
• Locations of family doctors
• Intention of parties in leaving BC or in coming to BC
• Whether any courts have already made orders or heard evidence involving the same parties and some of the same issues
• Place where the parties made any agreements about their family law issues

As you can see from this list, there can be a great deal of evidence provided to the court to try to tip the balance in favour of one jurisdiction over the other. This can be an overwhelming process for all involved, so it is generally preferable to focus and narrow the evidence down to its strongest points.

In their decisions, judges normally do not refer to every single fact that they heard during an argument but focus on the key parts of the evidence that influenced their findings.

A couple of recent jurisdiction cases that Railtown Law has successfully argued before the BC courts may serve as instructive examples of what warrants a “real and substantial connection” and how it applies: namely, Ovchinnikova v. Stevens (2018) and English v McCurdy (2019).

In Ovchinnikova, the claimant Ms. Ovchinnikova, a Russian national who lived and worked in Dubai, had a residence in Belarus and occasionally resided in Russia where she had the parties’ child. The child lived in Russia with his grandmother.

Railtown Law represented Mr. Stevens, the respondent, who also lived in Dubai and worked in various other countries while maintaining a residence in Kazakhstan. Mr. Stevens is a Canadian citizen and owns property in BC where his cousin resided. He had lived and worked outside of BC for many years, only visiting once in a while to see family.

Ms. Ovchinnikova made a claim for support in BC, and, on an application to court brought without notice to Mr. Stevens, argued there was a sufficient connection with BC to give the BC court jurisdiction over her case. This assertion was based primarily on the fact that Mr. Stevens is a Canadian citizen and owns property in BC.

The application judge granted an interim order for spousal support that eventually reached Mr. Stevens. Mr. Stevens was able to retain a lawyer to object to the BC court’s jurisdiction in this matter.

Mr. Stevens also retained an attorney to assist him with commencing a family law proceeding in Russia.

Mr. Stevens’ lawyer for the Russian proceeding, Karina Duvall, provided key evidence for the BC proceedings. She raised explanations of Russian family court procedure and clarifications of other expert evidence on Russian family law, as well as on Belarus and Kazakh law relating to the enforcement of court orders. This evidence was extremely helpful in showing the BC judge why orders made by the Russian court could be enforced against Mr. Stevens if he failed to pay child support.

This case underlies the importance of having good expert evidence about the family law that has taken effect in a foreign jurisdiction. The links to BC, in this case, were very tenuous– being only the citizenship of the respondent and his ownership of property in BC.

Often in a family dispute, parties will make a claim to the property. However, Ms. Ovchinnikova did not meet the requirements to be considered a spouse and she could make no direct claim to an interest in Mr. Stevens’ property.

It was suggested that Ms. Ovchinnikova’s main objective was to force Mr. Stevens to apply for Canadian citizenship on behalf of the child, which would ultimately allow her to immigrate to Canada with the child.

After presiding over a number of court appearances and reviewing hundreds of pages of documentary evidence, a BC judge ultimately decided that the lack of “real and substantial connection” with BC eliminated her jurisdiction over the case.

Additionally, Ms. Ovchinnikova argued that the BC court was a court of necessity and should take jurisdiction on that basis because she could not obtain relief anywhere else. The expert evidence produced by Mr. Stevens about the relevant law in Russia, Belarus, and Kazakhstan indicated the contrary.

The BC judge noted that the evidence also showed that the parties had already attorned to the jurisdiction of the Russian court, and any orders made by that court would be enforceable in Kazakhstan where Mr. Stevens lived with his own family.

The case was dismissed with costs awarded to Mr. Stevens.

One of the aspects of this case that jumps out is the fact that even an apparent ‘loser’ of a claim will often require a respondent to spend time and money to defend against it. This can only be achieved by meeting the opposing arguments with evidence, expert evidence, and legal authority.

Therefore, it helps if you consult someone with experience who knows where to start, and what ‘rabbit holes’ to avoid.

The article was published: railtownlaw.com