Interjurisdictional Service Issues

The big, shiny new issue in family law procedure is here: interjurisdictional service.

Canada, all the way back in 1988, signed onto the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Yet, if you’re a family practitioner who hasn’t heard of it, you’re far from alone. “The Hague convention,” in our parlance, means the one relating to international child abduction; most of the other conventions Canada has signed onto just don’t have the same impact as that one.

That is, until now. Now, you’ve better have heard of the convention on service, because according to the Divisional Court, it governs us, and not just our civil-law colleagues.

The convention has been cited by Ontario family judges for a number of years, but rarely. Recently, though, a three-judge panel of the Divisional Court heard the appeal of Wang v. Lin, and you know it’s going to be an interesting one because the decision names five lawyers for the two parties.

The subject of the appeal was whether service had complied with the convention — and, of course, whether such compliance was mandated. At the Superior Court level, Justice Kiteley had ruled that the Family Law Rules intentionally depart from the Rules of Civil Procedure, which adopt the convention requirements, and that therefore convention-approved service was not necessary in family cases.

The Divisional Court, for better or worse, did not agree. They wrote:

[7] In brief, it is well established that in interpreting legislation, there is a presumption that the legislature intends to conform to international law and to live up to its international obligations. That presumption may be rebutted, but to do so, the language of the legislation at issue must be clear and unequivocal.

As the Family Law Rules do not actively thumb their nose at Canada’s international obligations, service that did not comply with the convention was not effective.

Ah, you ask, but what’s the big deal? Or, the more pro-active of you: how do I ensure I comply going forward?

The good news is that this is a very answerable question; the bad news is you will have to engage in, at the very least, a minute’s google search to tailor that answer to your specific case. Any service can be effected through the Central Authority–and I feel for Ontario’s, which is currently made up of one lawyer and one clerk, and is perhaps about to be inundated. However, if the other jurisdiction does not object, you can also serve in a method that complies with Ontario service requirements.

I’ll even make it very, very easy for you: the chart of signatories is here. The column on the far right contains indicators of whether the member state in question has added stipulations to its membership. Click on the letter(s) in that column, and look for the word “oppose.” See, for instance, the People’s Republic of China, which was the country in question in Wang v. Lin–click through, and you’ll see, among other declarations, this one:

3. to oppose the service of documents in the territory of the People’s Republic of China by the methods provided by Article 10 of the Convention.

So, those are the basics. If you’re serving outside Canada, get hip to the new requirements, and make sure you warn your client that, like everything else procedural, there may be a long delay associated with compliance.

Molly Leonard

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