Navigating Jurisdiction in Cross-Border Family Law Disputes: Key Insights from L.M.H. v. R.M.V.

OVERVIEW

In a recent Supreme Court of British Columbia (“BCSC”) decision, titled L.M.H. v. R.M.V., 2024 BCSC 1199 (“LMH”), the court contemplated the legal notions of jurisdiction simpliciter and forum non conveniens in the family law context. The LMH decision has particular value for family law situations which cross national borders. 

FACTUAL BACKGROUND

The claimant mother and the respondent father in this family law case were married in 2006 in Mexico. For the majority of their marriage, including the birth of their two children, now aged 12 and 16, the parties lived in Mexico. The claimant and children moved to British Columbia in 2019 with the respondent’s consent, and have habitually resided in British Columbia since that time. The respondent has during all times remained in Mexico. In March of 2022, the parties separated.

The respondent started a legal proceeding against the claimant in Mexico in April of 2022, the claimant being formally served in Canada in September of 2022. In November of 2022, the Claimant filed a response challenging the Mexican court’s jurisdiction over the matter, simultaneously filing a counterclaim. 

The claimant began the divorce proceedings at issue in this case in July of 2022. She sought orders for division of family property, spousal support, child support, and parenting arrangements. In September of 2022, the claimant was granted an order that the children were habitually resident in British Columbia, that BC was the appropriate jurisdiction for matters concerning the children, and that she had sole parental responsibilities and primary residence of the children.

The Notice of Application underlying the present case was filed by the Respondent in February of 2023, in conjunction with a November 2022 response challenging the jurisdiction claimed by the claimant. This particular case concerns an application by the respondent for the September 2022 orders to be either dismissed or stayed, due to the BCSC lacking the requisite jurisdiction to make a ruling on any of the family law matters at issue. In the alternative, the respondent argued that the BCSC should decline to exercise jurisdiction on the grounds of forum non conveniens.

LEGISLATIVE BACKGROUND

The analysis of jurisdiction is a two-step process that the court in LMH turns to the case of B.C. v. D.E., 2022 BCSC 1597 to distill. That case reads,

“(a) First, the court determines whether it has territorial competence over the dispute, otherwise referred to as jurisdiction simpliciter. The burden of establishing an arguable case for territorial competence rests with the party asserting its existence[.];

(b) Second, if the court has territorial competence, it must then determine whether it ought to decline that jurisdiction in favour of another forum that is “clearly more appropriate”, often referred to as a forum non conveniens analysis[.] … The burden of proof in the forum non conveniens analysis rests with the party asserting that another forum is clearly more appropriate [.]”¹

[Emphasis Added]

Bearing the foregoing in mind, the court conducted its two-step analysis as follows.

ANALYSIS OF JURISDICTION SIMPLICITER

The burden of proof for jurisdiction simpliciter rests always with the claimant, which must be considered while discussing the interplay between the three relevant statutes underpinning jurisdictional issues in family law; namely, the Court Jurisdiction and Proceedings Transfer Act (the “CJPTA”), the Divorce Act (the “DA”), and the Family Law Act (the “FLA”). The case Y.Q. v. J.D., 2021 BCSC 943 distinguishes the three as follows,

“[39] The [DA] displaces s. 3 of the [CJPTA] with regard to territorial competence over parenting orders, child support, and spousal support: ss. 3(1), 4(1), and 6.2(1). Pursuant to s. 3(1) of the [DA], the British Columbia Supreme Court has territorial competence over divorce proceedings where at least one of the spouses was habitually resident in British Columbia for at least one year immediately prior to the commencement of the proceeding. Section 4(1) provides that a court has jurisdiction over a corollary relief proceeding if s. 3(1) is met or if both spouses consent.

[40] The [FLA] supersedes s. 3 of the [CJPTA] with regard territorial competence over parenting orders and property division: ss. 74 and 109. It does not displace the [CJPTA] with respect to child support or spousal support.

…

[42] Neither the [DA] nor the [FLA] displaces the [CJPTA] with regard to forum non conveniens for parenting orders, child support, or spousal support. Section 106(4) and (5) of the [Family Law Act] supersedes s. 11 of the [CJPTA] with regard to property division. The [DA] does not provide for property division.”²

Based on an analysis of the foregoing legal principles, and namely the emphasized portion of the above paragraph 39, the BCSC had little difficulty finding that the claimant had met the burden for proving jurisdiction simpliciter. The court then moved on to decide whether the established jurisdiction ought to be declined in favour of a more appropriate forum by conducting a forum non conveniens analysis.

ANALYSIS OF FORUM NON CONVENIENS

The non-exhaustive factors to be considered by a court doing a forum non conveniens analysis are located in section 11 of the CJPTA:

11 (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

1. the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
2. the law to be applied to issues in the proceeding,
3. the desirability of avoiding multiplicity of legal proceedings,
4. the desirability of avoiding conflicting decisions in different courts,
5. the enforcement of an eventual judgment, and
6. the fair and efficient working of the Canadian legal system as a whole.

Critically, the BCSC stated that “even if the defendant does not satisfy me the court ought to decline to exercise jurisdiction over the case as a whole, that the court may decline to exercise jurisdiction over one or more aspects of the case.”⁴ Thereby, the court conducted four individual analyses of each of property division, spousal support, child support, and parenting time.

With respect to property division, spousal support, and child support, the BCSC held that, since the majority of assets were located in Mexico, including both businesses and real properties, all documentation of which would likely be in Spanish, it was justifiable for the court to decline its jurisdiction over said matters on the grounds of forum non conveniens. The more appropriate forum for these matters to be decided would be Mexico, by the time of this case most of which had already been decided therein.

The respondent failed, however, in attempting to get the court to declare forum non conveniens for the parenting time issue. At paragraph 45, the BCSC held:

“The children have been almost exclusively residing in B.C. since 2019 and there is no indication that will change in the foreseeable future. While it is always preferable that the courts not be involved in parenting matters, should the intervention of the court be required, the court in the jurisdiction where the children reside is usually better suited to make and enforce relevant orders. […] Given that the court in Mexico also appears to have asserted jurisdiction over parenting issues, I accept that there may be some risk of conflicting orders. However, I find that any conflicts could be taken into consideration if and when this Court or the Mexican court is faced with an application related to parenting issues.”⁵

Ultimately therefore, the court found for the petitioner in one of the four matters, and for the respondent in the remaining three. Property division, spousal support, and child support would all be handled better, the BCSC ruled, via the Mexican legal system; while parenting time would more appropriately be determined in Canada.

TAKEAWAYS

In contentious family law proceedings that cross over national borders, jurisdiction is critical to establish. The knowledge that Canadian courts rely on jurisdiction simpliciter and forum non conveniens in both assessing and evaluating their jurisdiction over a family law matter, or an individual part thereof, allows parties further clarification on how best to navigate the legal system.

¹ L.M.H. v. R.M.V., 2024 BCSC 1199 (CanLII). At para. 13. [LMH]
² LMH. Supra Note 1. At paras. 39 – 40, 42.
³ Ibid. At para. 24.
⁴ Ibid. At para. 27.
⁵LMH. Supra Note 1. At para. 45.