In jurisdiction cases, there are always some key facts presented to the court to persuade the judge that the apparent or alleged connection of the case to, for example, BC, is not sufficient for the court to take jurisdiction.
What follows are some of the factors 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, birth certificates, passports, visas
Place where the parties and the children normally live 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 where the parties pay taxes, hold bank accounts, own property, have investments
Countries issuing their driving licences, health cards, vehicle registrations
Dates of a move to another country or return to BC
Locations of children’s schools, how long they attended school in one country or the other
Locations of family doctors
Intention of parties in leaving BC, 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 overwhelming for all involved, so it is generally preferable to focus and narrow the evidence to its strongest points.
In their decisions, judges normally do not refer to every single fact that they heard during 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 good examples of what “real and substantial connection” means and how it applies: Ovchinnikova v. Stevens (2018) and English v McCurdy (2019).
In Ovchinnikova, the claimant Ms. Ovchinnikova, a Russian national, 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 and visited BC infrequently 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, 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 which order eventually reached Mr. Stevens who retained a lawyer to object to the BC court taking jurisdiction in this matter.
Mr. Stevens also retained a lawyer to assist him in commencing a family law proceeding in Russia.
Mr. Stevens’ lawyer for the Russian proceeding, Karina Duvall, also provided key evidence for the BC proceedings including 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 enforcement of court orders, which were 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 underlines the importance of having good expert evidence about the family law in effect in the foreign jurisdiction.
The links to BC in this case were very tenuous in that there was only the citizenship of the respondent and his ownership of property in BC.
Often in a family dispute there is a claim to 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.
There was a suggestion that Ms. Ovchinnikova’s main objective was to force Mr. Stevens to apply for Canadian citizenship for the child (which would ultimately allow her to immigrate to Canada with the child).
After a number of court appearances, with hundreds of pages of documentary evidence, a BC judge decided that there was not a “real and substantial connection” with BC so she did not have jurisdiction to deal with the case.
Ms. Ovchinnikova also 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 by meeting the various arguments with evidence, expert evidence, and legal authority.
It therefore helps if you have someone with experience who knows where to start and what ‘rabbit holes’ to avoid.
The article was published: railtownlaw.com