In today’s increasingly globalized society, it is common to see parties who own foreign property involved in family law proceedings in the Supreme Court of BC (the “BC Supreme Court”).
This blog post outlines the BC Supreme Court’s jurisdiction over family property located outside of BC, including the key provisions under BC’s Family Law Act and rulings from the BC Court of Appeal on this issue.
Section 106 of the Family Law Act
Section 106 governs how the BC Supreme Court determines whether to act respecting property located in another jurisdiction:
- (1) This section applies if an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction.
- (2) Despite any other provision of this Part [property division], the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:
- (a) a spouse has started another proceeding in the Supreme Court, to which a proceeding under this Part is a counterclaim;
- (b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court’s jurisdiction under this Part;
- (c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started;
- (d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based.
- (3) For the purposes of subsection (2) (d), a real and substantial connection is presumed to exist if one or more of the following apply:
- (a) property that is the subject of the proceeding is located in British Columbia;
- (b) the most recent common habitual residence of the spouses was in British Columbia;
- (c) a notice of family claim with respect to the spouses has been issued under the Divorce Act (Canada) in British Columbia.
- (4) Despite subsection (2), a court may decline to make an order under this Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.
- (5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following:
- (a)…
- (b) the relative convenience and expense for the spouses and their witnesses;
- (c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding;
- (d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals;
- (e) the extent to which an order respecting property or debt
- (i) made in another jurisdiction would be enforceable in British Columbia, and
- (ii) made in British Columbia would be enforceable in another jurisdiction;
- (f) the fair and efficient working of the Canadian legal system as a whole;
- (g) any other circumstances the court considers relevant.
- (6) A determination of authority under subsection (2) or of whether to decline jurisdiction under subsection (4) is to be made solely by reference to this section.
[Emphasis added.]
Jiang v. Shi, 2017 BCCA 276
In this leading case on the application of section 106, the BC Court of Appeal found
- [24] Thus, the first question to be asked when jurisdiction is called into question because of cross-border elements is whether an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction. If the answer is yes, the determination as to whether the Court has authority to make an order to resolve the dispute and, if so, whether to exercise jurisdiction must be made “solely by reference to” section 106: s. 106(6).
- [25] Subsection 106(2) sets out four conditions for the assumption of jurisdiction. One of these conditions must be met for the Court to assume jurisdiction over the dispute.
- [26] If the Court determines that it has authority to make an order, a separate question may arise as to whether jurisdiction should be exercised in the particular case. This was the question that divided the parties in the case at bar. Subsections 106(4) and (5) set out the considerations for this determination.
[Emphasis added.]
In this case, Mr. Jiang (the “Husband”) and Ms. Shi (the “Wife”) were married in China, had lived in China and BC during their marriage, separated in 2014 and at the time of appeal, were living separate and apart in China. The Wife maintained a residence in BC and sought to have the division of family property adjudicated in BC, although she also began proceedings in China to seek orders in relation to certain Chinese assets. The Husband took the position that the BC Supreme Court should decline jurisdiction in favour of the courts of China (para. 2).
The BC Supreme Court decided that China was the more appropriate forum (finding in favour of the Husband). The Wife then brought this appeal, which was dismissed. The Court’s decision was based on its consideration of the factors listed under s. 106(5), including:
- It was more convenient for the parties for the Chinese properties to be litigated in China. The property and debts were in China, and evidence (e.g., appraisals) must be performed in China then translated into English if the BC Supreme Court were to exercise its jurisdiction (para. 79).
- The law to be applied should also be the law of China. The parties were married in China, lived the majority of their married life in China, and separated in China. China was the jurisdiction most closely associated with their relationship. Accordingly, the internal law of China was the proper law of their relationship (para. 89).
- As the Wife had already started proceedings in China to attempt to trace family assets that she believed the Husband had hidden in China, the risk of multiple proceedings or conflicting decisions in different courts will be avoided if all the matters relating to family property were heard in China (para. 92).
Wang v. Li, 2025 BCCA 256
The same issue of jurisdiction came up again in this more recent 2025 case, which, like Jiang v. Shi, was first litigated in the BC Supreme Court and then later appealed to the BC Court of Appeal.
In this case, Mr. Wang claimed an interest in a number of commercial real estate units located in Hefei, China, of which Ms. Li was the registered owner (referred to as the “Chinese Properties” and “Jin An Garden” in the judgment).
In the BC Supreme Court, the trial judge declined jurisdiction:
- [22] The trial judge declined jurisdiction to determine this matter under s. 106(4) of the FLA. He found that it would be more appropriate for a court in China to determine the issue because of the limited evidentiary record; the fact that the issue involved the Li Parents, who claimed to beneficially own the properties; and the fact that prior litigation proceedings related to the Chinese Properties had already been adjudicated by Chinese courts. [Emphasis added.]
However, the Court of Appeal held that the trial judge erred in declining jurisdiction:
- [60] This Court addressed the proper approach to s. 106 in Jiang v. Shi, 2017 BCCA 276, which the judge did not refer to in his reasons. In Jiang, Hunter J.A. held that the first question to be asked when deciding whether to decline jurisdiction under s. 106 is whether an order respecting property division, respecting the same spouses, may be made in more than one jurisdiction: at para. 24. As noted in Jiang, this requirement is consistent with the common law requirement that where a party raises an issue of forum non conveniens, that party must establish, among other things, that there is another forum “with an appropriate connection under the conflicts rules…that should be allowed to dispose of the action” and that the alternative forum is more appropriate: see Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para. 103.
- [61] The judge did not address this legal requirement. In the absence of a finding that an order respecting the family property division could be made in China, it was not open to him to decline to exercise jurisdiction under s. 106. While he did refer to some litigation involving the properties that had already taken place in China, these proceedings did not concern the family property division between Ms. Li and Mr. Wang (neither of whom were parties) and did not address the Li Family’s respective ownership interests in the disputed properties.
- [62] Parenthetically, I would add that in Jiang, Hunter J.A. also emphasized the “mandatory nature” of the factors identified in s. 106(5), drawing particular attention to the court’s obligation to consider whether and how the choice of law rules set out in s. 108 of the FLA apply: at para. 30. The provisions of the FLA, and this Court’s decision in Jiang, required a clear engagement with s. 108 and the considerations enumerated in s. 106(5) which the judge did not perform.
[Emphasis added.]
What Can the BC Supreme Court Do If It Exercises Jurisdiction Over Foreign Properties?
The answer can be found in section 109 of the Family Law Act, which provides:
- (1) If the Supreme Court has authority under this Division to make an order respecting extraprovincial property, the Supreme Court may make an order respecting the ownership and division of the extraprovincial property.
- (2) For the purposes of dividing extraprovincial property, the Supreme Court, on application by a spouse, may make an order to do one or more of the following:
- (a) instead of dividing the extraprovincial property,
- (i) require property or family debt within British Columbia to be substituted for rights in the extraprovincial property, or
- (ii) require a spouse who has legal title to the extraprovincial property to pay compensation to the other spouse;
- (a) instead of dividing the extraprovincial property,
- (b) if the court is satisfied that it would be enforceable against a spouse in the jurisdiction in which the extraprovincial property is located,
- (i) preserve the extraprovincial property,
- (ii) provide for the possession of the extraprovincial property,
- (iii) require a spouse who has legal title to the extraprovincial property to transfer all or part of the spouse’s interest in the extraprovincial property to the other spouse, or
- (iv) provide for any other matter in connection with the extraprovincial property;
- (c) if the court is satisfied that it would be enforceable in the jurisdiction in which the extraprovincial property is located, provide for non-monetary relief.
We Are Here to Help
The Court of Appeal noted in Jiang v. Shi that the jurisdictional issue can be “complex” (para. 81). We agree.
At LK Law, we have assisted a number of clients who, either personally or via their spouse, held property outside BC and Canada. It is important to seek legal advice early in family law disputes to determine how to best approach foreign property to protect your legal rights in that property, or to defend against a claim by the other party.
In addition to property and debt division, the family law practice group at LK Law also has experience dealing with child-related cross-border issues.
In a separation or divorce, where one party intends to leave or has already left BC to settle down somewhere else, interjurisdictional issues can quickly arise and complicate matters.
The family practice group at LK Law is equipped with the knowledge and experience to help you navigate these complex issues. If you are facing a separation or divorce involving property or family members outside BC, our family law team can help you understand your rights and develop a strategy that protects your interests. Contact us today to book an initial consultation.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.