Monday, June 25, 2012


I am quoted in today's National Post front page story:
Mobile immigrants test Canadian court’s reach in divorce | News | National Post

Mobile immigrants test Canadian court’s reach in divorce

Adrian Humphreys
Jun 24, 2012 – 9:48 PM ET | Last Updated: Jun 24, 2012 9:52 PM ET
A high-stakes divorce between a wealthy businessman and his wife — who immigrated from China to Canada as a couple but left most of their money abroad — is raising questions about the power of Canadian courts over highly mobile and affluent immigrants.

The acrimonious marital split has already brought accusations of parental child abduction, scuttled an initial public offering on the Hong Kong stock exchange, drawn evidence of $165.5 million in tax havens overseas and revealed the couple’s $3-million Toronto home has been only occasionally occupied.

It is indicative that Canada is a very popular destination for people of affluence

And now, the family’s on-again, off-again residency in Canada has prompted a Family Court judge to ponder what power he has to settle the matter. “The only connection to Ontario is an encumbered real property and a bank account. In contrast, the parties have three real properties in China and significant bank accounts,” said Ontario Superior Court Justice Peter G. Jarvis.

Similarly, the children have been shuttled back and forth between Canada and China, like “pawns in the larger dispute,” said Judge Jarvis, complicating the role of a court in settling custody.

After declining to intercede further, Judge Jarvis’ ruling is now under appeal with the hope of new and clearer rules on when a court can act.

“It will be very helpful for the Court of Appeal to decide on tests of residency in cases such as this,” said Andrew Rogerson, a Toronto lawyer specializing in cross-border litigation and asset protection, who is representing the wife.

“We have a multicultural country where people have come from virtually everywhere in the world and it makes the issue confronting the judges of Ontario more internationalized than would happen in a country that didn’t have such a mosaic.

“It is indicative that Canada is a very popular destination for people of affluence.”

This family’s problems first came to court in April when the wife, Hong Wang, 39, sought an Ontario court order freezing the assets of her husband, Wei Lin, 40.

She feared her husband, who had been successful in real estate, would move money beyond her reach in any divorce settlement.She won that round.

This case highlights the fairly recent trend of wealthy Chinese nationals who obtain permanent residency in Canada but keep most of their assets and businesses overseas

“My order was sweeping and was quickly followed by an order of the High Court of Justice in the British Virgin Islands that froze Mr. Lin’s substantial assets situated there. This had the effect of stopping an initial public offering pending in Hong Kong in which he had a substantial interest,” Judge Jarvis said in a subsequent ruling.But much is still left to decide.

Born and married in China, the couple came to Canada in 2005 with their two sons, aged 2 and 3, with the aim of becoming Canadian citizens. They settled in an opulent home in Toronto’s Bridle Path neighbourhood.

The mother and children became Canadian citizens but because of the husband’s travels, he lost his permanent residency status. In 2010, they were reunited in China, living together in one of their Beijing properties. In April, Mr. Lin broke shocking news.

“[He] told me that the marriage was definitely over and he would not give me any money to go away now, but would later give me two condos in China valued at $2.6 million,” she told court.She complained the amount was only about 2% of their assets.

She returned to Toronto, where she moved against her husband. According to the Divorce Act, a provincial court has jurisdiction if either spouse has been resident for the year immediately prior to the filing of the case.

Judge Jarvis said Ms. Wang’s affidavit “was artfully composed” to make it seem she qualified.

“It is clear to me that Ms. Wang was not ordinarily resident in Ontario.”

But as Judge Jarvis was deliberating last month, Mr. Lin reported the children had gone missing without a trace in China. When court reconvened, the mystery was solved: the boys were in court with their mother.

She had moved them back to Toronto and enrolled them into an elite private school. In court, Ms. Wang said Canada was a better place for the children than China.

“Ms. Wang complained about the food, rudeness of the people and had the temerity to testify that many Chinese found money to be their most important motivator,” Judge Jarvis said.

Mr. Lin’s lawyer argued the children had been wrongfully taken and ask they be sent back to China. His lawyer argued the children’s residence was China and, as such, Ontario’s court had no right to rule on custody. Mr. Lin’s lawyer could not be reached.

Judge Jarvis questioned how much real power he had in the case. He declined to order the children back to China but left custody – and indeed a divorce decision – up to a judge in any future formal divorce and custody proceedings.

“This case highlights the fairly recent trend of wealthy Chinese nationals who obtain permanent residency in Canada but keep most of their assets and businesses overseas,” said Sergio Karas, a Toronto immigration lawyer and past chair of the Ontario Bar Association’s immigration section.

“The question of divorces and custody battles with international and immigration implications will continue to be of increasing importance given the diversity of our immigrant population, their ability to travel frequently and their continuing ties to their countries of origin,” he said.

“It is not surprising that these fights become more legally complex and with much more money at stake.”

National Post

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