December 5th, 2017
As the 1960s “nuclear family” is no longer the norm and Canadians become more accustomed to diverse manifestations of the family model, family lawyers and judges across the country are faced with increasingly complex fact scenarios, including issues related to multi-national families. One such issue is the proper service of divorce or custody Applications on a spouse who is living or working abroad.
Despite the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (or “Hague Service Convention”) having been around for more than 50 years, there has still been considerable uncertainty as to whether family law litigants in Ontario need to abide by the international treaty when serving family court documents abroad. The confusion was recently put to rest by the Divisional Court of Ontario in the appeal of Wang v. Lin, 2016 ONSC 3967.
The confusion stems, in large part, from the co-existence of the Rule for service in the Family Law Rules (Rule 6) and Rule 17.05 of the Rules of Civil Procedure. The Family Law Rules make no specific provision for service outside Ontario. However Rule 17.05 of the Civil Rules expressly incorporates the Hague Service Convention for documents served outside Ontario.
Historically, family law proceedings had been governed by the Civil Rules. However, given the personal nature of family law and its diverse pool of litigants, the more simplified Family Law Rules were enacted in 1993 in an effort to be more accessible and easier to navigate. In situations where the Family Law Rules “do not cover a matter adequately”, Rule 1(7) provides that resort may be made to the Civil Rules on that particular matter.
In Wang v. Lin, 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 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.
The Convention was established in 1965. There are 71 parties to the Convention and Canada became signatory in 1988. 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.
Article 10 of the Hague Service Convention provides that if the state of destination does not object, then service may be affected in accordance with the rules for service in Ontario. If the state of destination does object (as China does), then service of a document in that state must be made through what the Convention calls a ‘Central Authority’. What qualifies as a Central Authority of course varies from state to state and so confusion abounds.
On the motion, Justice Kiteley 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, Kiteley J. 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.
While the Divisional Court recognized that the Family Law Rules were enacted in 1999 to create a separate set of rules for family law proceedings, they held 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.
This decision of the Divisional Court 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. These additional steps required by the Convention not only result in additional time and expense, but significant confusion as well for a pool of litigants entering into the legal arena self-represented in ever-increasing numbers.
This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.