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International service of documents can be complex, costly

recent ruling from Ontario’s Divisional Court requires litigants who want to serve documents on a former spouse overseas to follow onerous international rules for service, says Toronto family lawyer Ryan McNeil.

On appeal, the court decided the provincial Family Law Rules do not adequately cover service of international documents. Instead, parties must follow the Hague Service Convention — an international treaty Canada signed in 1988, says McNeil, associate with Lerners LLP.

In some cases, that can mean expensive legal translation and considerable delays — even for the most simple or uncontested divorce application, McNeil tells AdvocateDaily.com.

“I’m surprised this is only being sorted out with the courts now,” says McNeil, who studied international law as part of his legal training at Queen’s University.

“If you look at how travel and relationships have evolved over the past 30 years toward a globalized era, families can now have ties to many different countries. As a result, we’ll see these issues more frequently.”

In the case, the wife was seeking to validate service of an application on her spouse in China after several failed attempts, according to the court’s written decision. While a lower court judge ruled the Family Law Rules provided a complete code for service of international documents, the Divisional Court disagreed.

Instead, the court deferred to the provincial Rules of Civil Procedure, which expressly adopt the Hague Service Convention, McNeil says.

The court found that there was a rebuttable presumption that domestic laws are drafted with an intent to conform to international law. The presumption may be rebutted but only if the language of the legislation is clear and unequivocal, McNeil says. 

The Hague Service Convention does not prohibit a receiving state from authorizing international service by methods in line with that state’s domestic laws. If the state of destination does not object, service can be effected according to the rules for Ontario, the court said.

“However, if the state of destination does object,” like China did in this case, “then service of a document in that state must be made through its Central Authority,” the decision said.

McNeil, who has dealt with this issue in his practice, says the process becomes more cumbersome if there is an objection because what qualifies as a “central authority” differs in each signatory nation.

“In the area of family law, where an increasing number of litigants are self-represented, it seems as though this requirement raises access to justice issues,” McNeil says. “To require a litigant to officially translate a prescribed court form to the destination state’s official language even though the receiving spouse is fluent in English can be costly and burdensome."

First, the lawyer must determine if the state of destination objects to the service in accordance with Ontario rules, he says. If so, the documents must go through the destination state’s central authority, which can sometimes take six months or longer.

McNeil says he sees potential issues with delays, particularly in certain family law matters, such as international custody disputes.

“Clients have to go through extra steps to comply with the Hague Service Convention, which are very costly,” he says, “but at least now we have clarification from the courts on this issue”.

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