Serving Divorce Documents Abroad and the Hague Convention

June 30, 2016

By: Jeff Li and Ashley Iyathurai

Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. You should contact Jeff Li or a family lawyer if you are concerned about your family law issues.

Like other civil litigation documents, once a divorce application has been issued by the court, the application must then be served on the other party. The Family Law Rules carve out separate rules that govern family law proceedings. However, if the Respondent resides outside Canada, the Hague Convention on the Service Abroad of Judicial and Extra judicial Documents in Civil or Commercial Matters (the “Hague Convention”) may be triggered.

Normally, a court has jurisdiction over respondents or defendants residing in the court’s local area only. Chaos may occur when residents reside outside the court’s jurisdiction. The Hague Convention was created in 1965 to regulate this potential chaos. While whether a court has jurisdiction over a specific case is governed by a more complex set of private international law (of conflict of law) rules, the Hague Convention at least achieves some regularity in the service of judicial documents involving more than one country.

When Respondent is in Ontario

Section 8(5) of the Family Law Rules specifies that an application for divorce must be served using special service. Special service can be carried out in a number of ways. A common method of effecting special service is to leave a copy of the documents with the individual. Other acceptable forms of special service are outlined in section 6 of the Family Law Rules.

When Respondent is outside Ontario

What if the other party is not in Ontario? Or, is not even in the same country?

The Family Law Rules do not specifically deal with this question. However, the Rules of Civil Procedure provide some guidance in this respect. Under the Rules of Civil Procedure, rule 17.05 governs the service of documents outside of the province of Ontario.

If the jurisdiction is a signatory to the Hague Convention, then service must be done in one of two ways:

  • Through the central authority in the contracting state; or
  • In a manner that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario.

In the past, the family law courts in Ontario frequently validated the service of divorce applications in compliance with section 6 of the Family Law Rules, even if the service was not in compliance with the Hague Convention. More recently, the Ontario courts have upheld the rules required by the Hague Convention.

In Khan Resources Inc. v. Atomredmezoloto JSC (2013 ONCA 189), the Court of Appeal held that section 17.05(3) of the Rules of Civil Procedure, if it applies, must be followed. In Pitman v. Mol (2014 ONSC 2551), the court ruled that the Hague Convention applies to the family law context as well. In that case, the applicant, Ms. Pitman, initiated a Motion to Change. She then served the motion materials on the respondent, Mr. Mol, who was residing in Georgia, USA, by following the rules for service in Georgia. As Georgia does not object to this kind of service under the Hague Convention, the service was ruled to be valid and in compliance with the Hague Convention.

In a recent case, Wang v. Lin, Justice Kiteley approved service not in compliance with the Hague Convention. In this case the applicant, residing in Ontario, sought to validate her service on the respondent, residing in China. The applicant’s main arguments were (a) the respondent had actual notice of the application, and (b) there was urgency as the respondent was cutting off the applicant’s finances. On appeal before the Divisional Court, however, Justice Kiteley’s judgment was set aside. The Divisional Court ruled that the Hague Convention applied and that this was not a case where the “access to justice” exception applied.

How to Serve Judicial Documents Abroad?

If you are attempting to serve someone outside of Ontario, you must first determine whether or not that jurisdiction is a signatory to the Hague Convention.

If the jurisdiction is not a contracting state, then service may be effected by either: following the applicable rules in Ontario, or, in the manner of service in the jurisdiction where service is being made.

If the jurisdiction is a contracting state, then the Hague Convention must be followed. Under Article 10 of the Hague Convention, if a state does not object, then service can be effected without going through the Central Authority. Thus, service can be done following the applicable rules in the destination state and/or in the originating state, or even directly made on an individual. If, however, the state does object, then the documents must be served through the state’s Central Authority. One such state is the People’s Republic of China. China, a signatory to the Hague Convention, requires that documents be served through its Central Authority.

Accordingly, applicants seeking to initiate a divorce application should review carefully the relevant rules in order to ensure documents are properly served. If you have questions about preparing or serving your divorce application, you should consult with an experienced family law lawyer.

 

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