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Service of Family Court documents must comply with Hague Convention

With families increasingly spread across the globe, lawyers and judges are faced with more complex legal issues, Toronto family lawyer Ryan McNeil writes in The Lawyer’s Daily.

“One such issue is the proper service of divorce or custody applications on a spouse who is living or working abroad,” says McNeil, an associate with Lerners LLP.

While the Hague Service Convention — known officially as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters — was created more than 50 years ago, there is still uncertainty about whether family law litigants in Ontario need to abide by the international treaty when serving documents in other countries.

McNeil says that confusion was recently put to rest by the Divisional Court of Ontario in a case, where the wife in Ontario made extensive efforts to serve a family law application on the husband in China but was unsuccessful.

“She brought a motion before Justice Frances Kiteley to validate service of her application based on several failed attempts. The issue before the motions judge was whether the wife was bound by the Family Law Rules (which do not specifically address international service) or whether resort had to be made to the Civil Rules which adopt the Hague Service Convention,” says McNeil.

“While it was meant to establish a more simplified means of international service in other contracting states, the convention has proven to be cumbersome, time-consuming and can sometimes require that all documents, including official court forms, be officially translated into the language of the state of destination. This can be very expensive and impractical if the respondent is known to be fluent in English,” he writes.

Article 10 says that if the state of destination does not object, then service may be affected in accordance with the rules for service, in this case, in Ontario. But if the state of destination objects, as China does, then service must be made through a "central authority."

McNeil says what qualifies as a “central authority” varies from state to state and so confusion abounds.

He says the motions judge found “that it was not necessary to go beyond the Family Law Rules simply because they do not have a specific rule for service outside Canada when they have a detailed code of procedure for service in general. That the Family Law Rules did not specifically address international service does not mean that they do not 'cover the matter adequately' such that resort should be made to Civil Rule 17.05 / Hague Service Convention, Justice Kiteley held. If Civil Rule 17.05 did apply, the motion judge found that the case before her fell within an 'access to justice' exception to the mandatory application of that rule. The motion judge validated service as a result and the husband subsequently appealed.

“The Divisional Court panel disagreed with the motions judge and allowed the husband’s appeal. They made it clear that when interpreting domestic legislation there is a presumption that the legislature intends to conform to international law and abide by its international obligations. The panel held that the presumption can be rebutted, but only when the language of the legislation in question is clear and unequivocal in its intention to default on its international obligations,” McNeil writes.

Although the Divisional Court recognized that the Family Law Rules were enacted to create a separate set of rules for family law proceedings, McNeil says it decided that “silence on the service of documents internationally could not support a finding that Ontario, seven years after implementing the Hague Service Convention in family law matters, reversed its decision, causing Canada to default on its international obligations.”

McNeil says the decision “teaches us considerable lessons in our increasingly globalized world, where spouses can often live or work in different jurisdictions: when serving family law documents (or documents in all civil or commercial matters) internationally to a state signatory to the convention, counsel must first determine if the state of destination objects to service in accordance with the rules for service in Ontario. If it does object, then service must be made through the destination state’s central authority.”

The additional steps are unfortunately time-consuming, expensive and confusing, says McNeil, especially “for a pool of litigants entering into the legal arena self-represented in ever-increasing numbers.”

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