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  • Writer's pictureJared Davies, Lawyer

Jurisdiction and property, pursuant to Li v Li, 2021 ONCA 669

Families who live in two jurisdictions have additional considerations when bringing a claim to family court.

In this case, the family had property in both Ontario and China. At the Motion, the Appellant tried to dismiss the Respondent’s property claims on the grounds that Chinese family Court had more jurisdiction than Ontario family Court to hear the matter. The Appellant was unsuccessful.

On appeal, the Court examined Wang v Lin. First, does Ontario have jurisdiction based on the “real and substantial connection” test? Second, forum non conveniens—whether there is a more appropriate jurisdiction for the matter to be heard.

The Court of Appeal gave deference to the finding that the Respondent’s property claims had a real and substantial connection to Ontario—after all, one of the properties in question was in Ontario and the Respondent still lives there. Thus, Ontario has jurisdiction. However, the Motion judge erred in finding that Ontario is the more appropriate jurisdiction than China, for this matter to be heard; the majority of their property is in China, and their three marriage contracts were written in Chinese and executed in China.

The Motion judge found that the Respondent was seeking equalization, or a monetary award, for Chinese properties in the Applicant’s name, so the location of the properties would be irrelevant. In other words, why would it matter if the properties are in China, when the Respondent will get paid for them in Ontario? This is interesting. As the Court of Appeal notes, it assumes that matrimonial property division in China is identical to Ontario—in Ontario, equalization typically works vis-a-vis a monetary payment rather than actually dividing ownership of the properties. In other words, the Motion judge first made the assumption that a monetary payment, rather than a property transfer, would result. This was necessary in order to then claim that the location of the property wasn’t relevant. The Motion judge erred in assuming that equalization laws are the same in both jurisdictions.

At the Motion, juridical advantage was another factor considered in preferring Ontario. There was evidence to suggest that the Respondent would be outside of the limitation period in China, thereby making Ontario the more appropriate jurisdiction. As the Court of Appeal recognizes, however, rigidly applying this principle could be problematic. It effectively incentivizes Applicants to bring their Application outside of the limitation period of the jurisdiction they seek to rebut, so that their preferred jurisdiction will always be appropriate (whenever they have the chance to do this). Little weight was given to juridical advantage at the Court of Appeal.

The Appellant was successful in demonstrating that China was the more appropriate jurisdiction to hear their family property dispute.

Jurisdictional issues continue to be a contextual and tedious analysis.


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