Wang v. Lin

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Marrocco A.C.J.S.C., Swinton and Sachs JJ.

June 20, 2016

132 O.R. (3d) 48 | 2016 ONSC 3967

Case Summary

Family law — Practice — Service — Family Law Rules not adequately covering service of documents outside Canada — Rule 17.05 of Rules of Civil Procedure (incorporating Hague Service Convention) applying to matters described in rule 1(2) of Family Law Rules — Compliance with Hague Service Convention mandatory — Family Law Rules, O. Reg. 114/99, rule 1(2) — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.05 — Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 658 U.N.T.S. 163, C.T.S. 1989/2.

The applicant made extensive efforts to serve the respondent with a matrimonial application in the People's Republic of China but did not seek to effect service in compliance with the provisions of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters page49 . She brought an ex parte motion to validate service of the application based on the attempts she had made. The motion judge found that the Family Law Rules provide a complete code for service of documents in family law proceedings and do not require resort to the Hague Service Convention when documents are to be served internationally. Alternatively, she found that this was an appropriate case in which to dispense with compliance with the Hague Service Convention based on access to justice concerns. The motion was granted. The respondent appealed.

Held, the appeal should be allowed.

The Family Law Rules do not adequately cover the service of documents outside of Canada. In interpreting legislation, there is a presumption that the legislator intends to conform to international law. That presumption may be rebutted, but to do so, the language of the legislation must be clear and unequivocal. Nothing in Rule 6 of the Family Law Rules (which provides for service of documents) clearly and unequivocally rebutted the presumption that Ontario intends its legislation concerning international service of documents required in family proceedings to conform to international law. Rule 17.05 of the Rules of Civil Procedure (incorporating the Hague Service Convention) applies to matters described in rule 1(2) of the Family Law Rules. Compliance with the Hague Service Convention is mandatory.

Assuming without deciding that considerations of access to justice can result in an exception to service under the Hague Service Convention in extreme circumstances, these circumstances did not exist in this case. Article 15 of the Hague Service Convention also provides that "Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures". The applicant had not sought emergency relief under art. 15.

Cases referred to

Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 164 (SCC), [1976] 2 S.C.R. 475, [1975] S.C.J. No. 84, 57 D.L.R. (3d) 1, 5 N.R. 515, [1976] 1 W.W.R. 1, 20 C.B.R. (N.S.) 240; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162; Khan Resources Inc. v. Atomredmetzoloto JSC (2013), 115 O.R. (3d) 1, [2013] O.J. No. 1453, 2013 ONCA 189, 303 O.A.C. 234, 33 C.P.C. (7th) 375, 361 D.L.R. (4th) 446, 225 A.C.W.S. (3d) 922; Metcalfe Estate v. Yamaha Motor Canada Ltd., [2012] A.J. No. 919, 2012 ABCA 240, 26 C.P.C. (7th) 18, [2012] 12 W.W.R. 425, 536 A.R. 67, 68 Alta. L.R. (5th) 23, 356 D.L.R. (4th) 58, 220 A.C.W.S. (3d) 535; Oesterlund v. Pursglove, [2015] O.J. No. 4997, 2015 ONSC 5967 (S.C.J.); Pitman v. Mol, [2014] O.J. No. 1953, 2014 ONSC 2551 (S.C.J.); R. v. Hape, [2007] 2 S.C.R. 292, [2007] S.C.J. No. 26, 2007 SCC 26, 280 D.L.R. (4th) 385, 363 N.R. 1, J.E. 2007-1140, 227 O.A.C. 191, 220 C.C.C. (3d) 161, 47 C.R. (6th) 96, 160 C.R.R. (2d) 1, EYB 2007-120452, 73 W.C.B. (2d) 528; Wang v. Lin, [2015] O.J. No. 6699, 2015 ONSC 7814, 69 R.F.L. (7th) 73, 261 A.C.W.S. (3d) 678 (S.C.J.); Wang v. Lin, [2013] O.J. No. 254, 2013 ONCA 33, 300 O.A.C. 381, 358 D.L.R. (4th) 452, 29 R.F.L. (7th) 1, 223 A.C.W.S. (3d) 989, varg [2012] O.J. No. 2599, 2012 ONSC 3374 (S.C.J.) [page50 ]

Statutes referred to

Children's Law Reform Act, R.S.O. 1990, c. C.12 [as am.]

Courts of Justice Act, R.S.O. 1990, c. C.43 [as am.]

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [as am.]

Family Law Act, R.S.O. 1990, c. F.3 [as am.]

Rules and regulations referred to

Family Law Rules, O. Reg. 114/99 [as am.], rules 1(2), (7), 6

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 17.05, (3), (a)

Authorities referred to

Permanent Bureau of the Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Service Convention, 4th ed. (2016)

Treaties and conventions referred to

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 658 U.N.T.S. 163, C.T.S. 1989/2, arts. 1, 2, 10, 13, 15

Statute of The Hague Conference on Private International Law, October 31, 1951, 220 U.N.T.S. 121, art. 1

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, C.T.S. 1980/37, art. 39

APPEAL from an order validating service.

Daniel S. Melamed and Charley T. Levitan, for respondent in appeal.

Aaron M. Franks, Tori O'Dwyer and Roslyn M. Tsao, for appellant.

BY THE COURT: --

Introduction

[1] In this decision, we refer to Hong Wang as the respondent and Wei Lin as the appellant. Hong Wang is married to Wei Lin and is the mother of their two children.

[2] This appeal raises the issue of whether service in Ontario family law proceedings on a party outside Canada requires compliance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 658 U.N.T.S. 163, C.T.S. 1989/2 (the "Hague Service Convention").

[3] On December 14, 2015, Kiteley J. [[2015] O.J. No. 6699, 2015 ONSC 7814 (S.C.J.)] (the "motion judge") decided that the Family Law Rules, O. Reg. 114/99 provide a complete code for service of documents in family law proceedings and they do not require resort to the Hague Service Convention when documents are to be served internationally. In this respect, according to the [page51 ]motion judge, they represent a deliberate departure from the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which do require compliance with the Hague Service Convention.

[4] The motion judge also decided that if she was wrong in her conclusion that parties outside Canada in family law proceedings may be served without complying with the Hague Service Convention, then this was a case where she could dispense with such compliance based on an "access to justice" exception to the rule that the Hague Service Convention is the exclusive means by which service may be affected on parties outside Canada.

[5] This is an appeal from that decision.

[6] For the reasons that follow, we would allow the appeal.

[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. The language of the Family Law Rules does not clearly compel the result that the Legislature of Ontario intended to default on Canada's international obligations under the Hague Service Convention.

[8] While the law is not completely settled on the question of whether the requirements of compliance with the Hague Service Convention may be dispensed with, the decision of the Ontario Court of Appeal in Khan Resources Inc. v. Atomredmetzoloto JSC (2013), 115 O.R. (3d) 1, [2013] O.J. No. 1453, 2013 ONCA 189 makes it clear that this case is not a case where the "access to justice" exception, if it exists, could be invoked.

Background

[9] The appellant husband and respondent wife were married in the People's Republic of China (the "PRC"). They have two children who were both born in the PRC. Five years after they were married, the respondent moved to Ontario with the children. The parties remained together, but there is a dispute between them as to whether the appellant also moved to Canada at that time. Five years later, in 2010, the respondent returned to the PRC with the children. Approximately a year later, the parties separated.

[10] In April 2012, the respondent returned to Ontario without the children and commenced proceedings in Ontario claiming relief under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the Family Law Act, R.S.O. 1990, c. F.3 and the Children's Law Reform Act, R.S.O. 1990, c. C.12. She also sought and obtained an ex parte worldwide Mareva injunction against the appellant. [page52 ]

[11] When the appellant received the respondent's application and the Mareva injunction order, he started a family law proceeding in the PRC and brought a motion to stay the respondent's Ontario application and to set aside the injunction. On June 7, 2012 [[2012] O.J. No. 2599, 2012 ONSC 3374 (S.C.J.)], Jarvis J. stayed the respondent's claims under the Divorce Act and the Family Law Act but found that Ontario had jurisdiction over the respondent's custody and access claim under the Children's Law Reform Act. By the time that Jarvis J. made his order, the respondent had removed the children from the PRC to Ontario. Jarvis J. also set aside the Mareva injunction.

[12] Both parties appealed Jarvis J.'s order to the Court of Appeal. On January 22, 2013 [[2013] O.J. No. 254, 2013 ONCA 33], the Court of Appeal upheld Jarvis J.'s decision to stay the respondent's claims under the Divorce Act and the Family Law Act and set aside his decision that Ontario had jurisdiction over the parenting issues raised under the Children's Law Reform Act. As a result of the Court of Appeal's decision, all of the respondent's claims were stayed and the issue of whether the children should be returned to the PRC was to be addressed by way of motion to the Superior Court of Justice. However, no such motion has been brought by either party. Accordingly, the children have remained with the respondent in Canada.

[13] On June 5, 2015, the respondent issued another family law application in the Superior Court of Justice (the "second application") seeking to lift the stay that had been imposed (except the claim for divorce), combine the second application with the previous application and have the parties' matrimonial property rights determined in accordance with the internal law of the PRC.

[14] The appellant had been paying substantial support for the children. In July 2015, that support stopped. As a result, the respondent maintains that she can no longer pay her housing expenses or the children's private school expenses.

[15] The respondent made extensive efforts to serve the appellant with the second application. However, she did not seek to effect service in compliance with the provisions of the Hague Service Convention until late November 2015.

[16] On October 14, 2015, the respondent brought a motion in writing on an ex parte basis seeking to validate service of the second application based on attempts that she had made to serve the appellant between July and September 2015. The motion judge dismissed the respondent's motion but allowed counsel for the respondent to renew the motion with additional evidence and a factum. [page53 ]

[17] On December 10, 2015, the respondent renewed her motion and the motion judge made the order that is the subject of this appeal.

Relevant statutory context

The Hague Service Convention

[18] Article 1 of the Hague Service Convention, which was concluded on November 15, 1965, provides that the "Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad".

[19] Canada became a signatory to the Convention in 1988.

Rules of Civil Procedure

[20] Rule 17.05 of the Rules of Civil Procedure expressly incorporates the convention. Rule 17.05(3) provides as follows:

17.05(3) An originating process or other document to be served outside Ontario in a contracting state shall be served,

(a) through the central authority in the contracting state; or

(b) 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.

[21] Article 10 of the convention provides, in effect, that if the state of destination does not object, then service may be effected in accordance with the rules for service in Ontario. However, if the state of destination does object, then service of a document in that state must be made through its central authority.

[22] The PRC, unlike Canada, is a contracting state that objects to service other than through its central authority. Accordingly, under rule 17.05, service of an originating process in the PRC must be effected through the PRC's central authority. This requires, among other things, that all documents that are to be served be translated.

The Family Law Rules

[23] The Family Law Rules make no specific provision for service outside the jurisdiction. They do, however, contain provisions for regular service, special service, substituted service and approval of irregular service.

[24] Rule 1(7) of the Family Law Rules states:

MATTERS NOT COVERED IN RULES

1(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by [page54 ]reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[25] Rule 6, which is the rule governing methods of service, begins as follows:

METHODS OF SERVICE

6(1) Service of a document under these rules may be carried out by regular service or by special service in accordance with this rule, unless an Act, rule or order provides otherwise.

The motion judge's decision

[26] The motion judge found that the Family Law Rules represent a deliberate decision by the legislature to enact a special set of rules for family law proceedings, which had previously been governed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[27] The fact that they do not specifically address international service does not mean that they do not cover the matter "adequately" such that resort should be had to rule 17.05 of the Rules of Civil Procedure as per rule 1(7) of the Family Law Rules.

[28] The motion judge found that the Family Law Rules [at para. 31]

. . . contain a detailed code of procedure, in the case of service: distinguishing between regular service and special service; requiring special service for the application; providing for substituted service and irregular service; and identifying methods of proving service. It is not necessary to go beyond the Family Law Rules simply because those rules do not have a specific rule for service outside of Canada when it has a detailed code of procedure for service in general. By creating a distinct set of rules, it was intended to focus on the Family Law Rules and resort to the Rules of Civil Procedure only when there was a void. On the subject of service, there is no void.

[29] If rule 17.05 of the Rules of Civil Procedure does apply, the motion judge found that this case fell within an "access to justice" exception to the mandatory application of that rule. In making this finding, the motion judge was informed by four factors:

(a) The fact that the appellant had stopped paying support in July 15, leaving his respondent and children in what the motion judge found to be "desperate" financial circumstances.

(b) The fact that the appellant was well aware of the second application.

(c) The fact that the appellant had initiated divorce proceedings in the PRC and had effected service of that proceeding [page55 ]on the respondent by delivering an envelope to her containing a document that was not translated into English, was unsigned and bore no official seal. In this regard, the motion judge found that the appellant was playing "cat and mouse" with the respondent "in that he hides behind the shield of the Convention in resisting service on him in China of proceedings initiated in Ontario yet uses the non-objecting status of Canada in trying to effect service of proceedings initiated in the PRC". According to the motion judge, "[i]t is not in the interests of justice for the court to allow that dichotomy to prevail, particularly where there are children who are entitled to the protection afforded by Ontario laws and whose financial circumstances are dire" (para. 48).

(d) Since the legislature had not "unambiguously expressed its will" that international service in family law proceedings must be governed by rule 17.05 of the Rules of Civil Procedure, "the Superior Court retains its inherent jurisdiction in the matter of service" (paras. 50-54).

[30] For these reasons, the motion judge validated service of the second application as of September 17, 2015, and directed the appellant to serve and file his answer to that application by February 15, 2016.

The issues on appeal

[31] This proceeding before the Divisional Court is an appeal with leave from the motion judge's interlocutory order.

[32] In his notice of appeal, the appellant seeks an order

setting aside the motion judge's order validating service of the respondent's application and accompanying documents; and for

-- costs of the appeal and the motion for leave to appeal.

[33] The appellant argues:

The issue of the application of the Hague Service Convention was not before the motion judge.

The motion judge's determination that the Hague Service Convention does not apply to a matter covered by the Family Law Rules was wrong.

The motion judge was wrong in determining that, if the Hague Service Convention does apply, the court has an inherent jurisdiction to disregard it. [page56 ]

The motion judge was wrong in determining that the respondent had pursued all possible remedies under the Hague Service Convention.

The motion judge wrongly concluded that the facts of this case gave rise to an exception to the Hague Service Convention.

The motion judge made an error by accepting evidence on information and belief from a law student on the December 10, 2015 ex parte motion.

[34] The issues in this appeal raise questions of law. Accordingly, the standard of review is correctness (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 8).

[35] This is perhaps an appropriate place to deal with the appellant's submission that the motion judge was wrong to deal with the applicability of the Hague Service Convention. The appellant objects to the determination by the motion judge that service in Ontario family law proceedings need not comply with the Hague Service Convention because, in the appellant's submission, the relief sought by the respondent was confined to a request for an order for substituted service and an order validating that service. The appellant argues that the motion judge was never asked to determine whether the Hague Service Convention applies to family law cases described in rule 1(2) of the Family Law Rules and therefore ought not to have done so.

[36] In our view, this submission is without merit. It was obvious that there was noncompliance with the Hague Service Convention. The application of the Hague Service Convention was directly in issue. The motion judge could not validate the service that had occurred without determining the applicability of the Hague Service Convention to family law cases described in rule 1(2) of the Family Law Rules.

The Family Law Rules Do Not Adequately Cover Service of Documents Outside of Canada

[37] The Family Law Rules apply to proceedings identified in rule 1(2). This rule includes matters such as this one, which ultimately seeks a determination of marital property and support rights.

[38] The Family Law Rules provide for service of documents under Rule 6. This rule does not specifically provide for service of documents outside of Canada. [page57 ]

[39] Accordingly, the first question, in accordance with rule 1(7), is whether the Family Law Rules adequately cover the subject of service of documents outside of Canada.

[40] The motion judge determined [at para. 25] that the Family Law Rules adequately cover service of documents outside Canada because Form 8, the regulated form for an application under the rules, provides as follows:

You have only 30 days after this application is served on you (60 days if this application is served on you outside Canada or the United States) to serve and file an answer. If you do not, the case will go ahead without you and the court may make an order and enforce it against you.

(Emphasis added)

[41] We respectfully disagree with the motion judge.

[42] Form 8 does not speak to the manner in which the application regulated by the form is to be served. It simply tells you that you have 60 days to answer if you are outside of Canada and the United States when you are served. If the application had been served in accordance with the Hague Service Convention, the 60-day response warning would be the same.

[43] Addressing the applicability of the Hague Service Convention after Canada acceded to it by relying upon an imprecise reference in a regulated form on receipt of documents served outside of Canada does not cover the matter of service of documents "adequately".

[44] Alternatively, the respondent argues that the Family Law Rules are a complete code in which Rule 6 deals with service and makes no distinction between service in and outside Ontario. The respondent argues that given the history of the Family Law Rules and the goals of simplicity and ease of use by those who are self-represented, the conclusion should be drawn that there is no special rule for service outside Ontario in family law proceedings.

[45] The problem with this argument is the fact that if the respondent is correct, noncompliance with the Hague Service Convention would put Canada in violation of its obligations under the convention. It is well established that in interpreting legislation, there is a presumption that the legislator intends to conform to international law. That presumption may be rebutted, but to do so, the language of the legislation must be clear and unequivocal. (See R. v. Hape, [2007] 2 S.C.R. 292, [2007] S.C.J. No. 26, 2007 SCC 26, at paras. 39, 53.)

[46] Neither the language of the regulated form nor the words of Rule 6 clearly and unequivocally rebut the presumption that Ontario intends its legislation concerning international service [page58 ]of documents required in family proceedings to conform to international law.

The Rule 1(7) Discretion to Provide Directions

[47] Rule 1(7) gives the court a discretion to provide directions respecting a practice that is not adequately covered by the Family Law Rules. The rule informs judges that the practice is to be determined by

-- analogy to the Family Law Rules;

reference to the Courts of Justice Act, R.S.O. 1990, c. C.43;

-- reference to the legislation governing the application; and

if the court considers it appropriate, reference to the Rules of Civil Procedure.

[48] The motion judge applied rule 1(7) in the alternative; that is in case she had wrongly concluded that the Family Law Rules adequately deal with service outside Ontario of documents required by those rules.

[49] She determined that the respondent relied upon the Family Law Act, the Divorce Act and the Children's Law Reform Act and that she could not identify any section in any of those Acts that assist her in giving directions concerning service of documents outside Canada.

[50] There is no basis for disagreeing with this conclusion.

[51] The motion judge considered the directions she should give. She determined that the Family Law Rules concerning service should apply by analogy to service outside Ontario. She determined that it was not necessary to go beyond the Family Law Rules even though those rules did not have a specific rule for service outside of Canada because those rules did have a detailed code of procedure for service in general. As a result, she also concluded that it was not "appropriate" to refer to the Rules of Civil Procedure for the purpose of giving direction concerning the practice to be followed for serving the appellant.

[52] We respectfully disagree with the way in which the motion judge has framed the problem and with her two conclusions.

[53] The problem is whether the Family Law Rules deal adequately with service outside the jurisdiction and, if not, whether it is appropriate to apply rule 17.05 of the Rules of Civil Procedure. If the Hague Service Convention applies, then it would be appropriate to refer to the Rules of Civil Procedure because rule 17.05 implements the convention in Ontario. [page59 ]

[54] We are satisfied that rule 17.05 of the Rules of Civil Procedure applies to family law cases described in rule 1(2) of the Family Law Rules for four reasons.

[55] First, the Hague Service Convention provides that it applies "in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad".

[56] The matters described in rule 1(2) of the Family Law Rules are civil matters.

[57] Second, the countries that signed the Hague Service Convention intended that it should apply to family law matters.

[58] Specifically, the Hague Conference on private international law (the "Hague Conference") is a body created in 1955 to work for the progressive unification of the rules of private international law. (See Statute of The Hague Conference on Private International Law, October 31, 1951, 220 U.N.T.S. 121, art. 1.) Both Canada and the PRC have acknowledged and accepted the Hague Conference. The Hague Conference drafted the Hague Service Convention.

[59] In 2016, the Hague Conference produced a new edition of the Practical Handbook on the Operation of the Hague Service Convention. This handbook provides that the Hague Service Convention applies to extrajudicial documents related to child support payments, separation and divorce orders, consents for adoption, acceptances of paternity and objections to marriage, which are family law matters described in rule 1(2) of the Family Law Rules. (See the Permanent Bureau of the Hague Conference on Private International Law, Practical Handbook on the Operation of the Hague Service Convention, 4th ed. (2016) at p. 30, Annex 6, p. 160.)

[60] Third, the method of implementation of the Hague Service Convention in Ontario was consistent with the notion that it should apply to family law matters.

[61] Specifically, the Uniform Law Conference of Canada described the 1989 adoption of the Hague Service Convention in the following manner in its proceedings in August 2015: "Canada acceded to the Convention in 1988 after obtaining confirmation from all jurisdictions that the necessary steps to implement it would be undertaken."

[62] This statement is confirmed by the history of rule 17.05(3) of the Rules of Civil Procedure, which made the Hague Service Convention part of the law of civil procedure in Ontario.

[63] Rule 17.05(3) was amended in 1992 by O. Reg. 535/92, which created a new rule 17.05(3). Prior to this amendment, the rule provided that originating documents could be served [page60 ]outside Ontario in the same manner as provided for by the rules of service in Ontario. O. Reg. 535/92 revoked the old rule 17.05(3) and substituted the following:

17.05(3) An originating process or other document to be served outside Ontario in a contracting state shall be served,

(a) through the central authority in the contracting state; or

(b) in a manner that is permitted by Article 10 of the Convention and that would be permitted by these rules if the document were being served in Ontario.

[64] In 1992, when O. Reg. 535/92 was adopted, the Rules of Civil Procedure applied to the practise of family law and the matters currently described in rule 1(2) of the Family Law Rules.

[65] Thus, the Hague Service Convention is a rule of private international law, which was intended to apply to family law matters and which Ontario implemented in such a way that it applied to family law matters currently described in rule 1(2) of the Family Law Rules.

[66] We recognize that the Family Law Rules were enacted in 1999 to create a separate set of rules for family law proceedings. The Family Law Rules, however, were silent concerning service of documents outside Ontario. Silence cannot support a finding that Ontario, seven years after implementing the Hague Service Convention in family law matters, reversed its decision, thereby causing Canada to default on an international obligation. If Ontario wishes to declare that the Hague Service Convention does not apply to family law matters within its exclusive jurisdiction, it must do so in clear and unequivocal language (see R. v. Hape, at para. 53; Metcalfe Estate v. Yamaha Motor Canada Ltd., [2012] A.J. No. 919, 2012 ABCA 240, 536 A.R. 67, at para. 48).

[67] We note, although it is not necessary for this decision, that there are two decisions of the Superior Court of Justice in conflict with the decision of the motion judge on this issue (see Pitman v. Mol, [2014] O.J. No. 1953, 2014 ONSC 2551 (S.C.J.), Gray J.; Oesterlund v. Pursglove, [2015] O.J. No. 4997, 2015 ONSC 5967, Chiappetta J.). The existence of conflicting decisions reflects the lack of clear and unequivocal language concerning service outside of Canada in the Family Law Rules.

[68] For the sake of completeness, the phrase "by Article 10 of the Convention" was struck out of rule 17.05(3) and replaced by the phrase "by the Convention" in 2013, with the result that the rule currently provides as follows: [page61 ]

17.05(3) An originating process or other document to be served outside Ontario in a contracting state shall be served,

(a) through the central authority in the contracting state; or

(b) 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.

[69] Fourth, it is imprudent for Ontario to choose to be outside the international mainstream in any area of the law, including family law.

[70] Specifically, art. 10 of the Hague Service Convention provides that documents can be served directly by postal channels or local judicial officers of the state of destination, unless that state objects. The state of destination for the application that the respondent wishes to serve is the PRC, which state objects to service in the manner described by art. 10 and insists that service be effected by a designated central authority in accordance with art. 2 of the Hague Service Convention.

[71] It is easy to imagine a situation in which the assistance of the PRC will be required in order to give effect to an order made by the Superior Court of Justice in a matter described in rule 1(2) of the Family Law Rules. For example, in this matter the respondent ultimately seeks an order determining her property rights in shares of a British Virgin Islands company called Eminent Talent Limited. If the Superior Court of Justice in Ontario were to order the transfer of all or part of those shares to the respondent or some third party and the appellant refused to co-operate, it is reasonable to think that the respondent might have to ask this court to issue a request for assistance addressed to the appropriate court in the PRC. In our view, there is a legitimate concern that a court in the PRC will be reluctant to lend its assistance if the Superior Court of Justice has in the same proceeding ignored the prerogative of the PRC to determine how documents are served within its territory.

[72] Because the Hague Service Convention does apply to matters described in rule 1(2) of the Family Law Rules and because the Rules of Civil Procedure implement the Hague Service Convention in Ontario and provide specifically for service of documents outside Canada, the motion judge was wrong to conclude that it was not appropriate to refer to the Rules of Civil Procedure when deciding how the respondent should serve her application.

[73] The direction contemplated by rule 1(7) when dealing with the service of documents contemplated by the Family Law Rules outside of Canada must be informed by rule 17.05(3) of the Rules of Civil Procedure because that rule implements the [page62 ]Hague Service Convention. The Court of Appeal decided in Khan Resources that compliance with the convention is mandatory when it applies.

[74] Khan Resources Inc. was not a matter that engaged the Family Law Rules. Khan Resources Inc., an Ontario corporation engaged in uranium exploration in Mongolia, participated in a joint venture with Atomredmetzoloto JSC, a Russian company controlled by the Russian State Atomic Energy Corporation. Khan Resources Inc. commenced an action in Ontario claiming that the Russian government was attempting to deprive it of its interest in a Mongolian property. It attempted service pursuant to the Hague Service Convention and rule 17.05(3)(a). The Russian Ministry of Justice refused service, citing art. 13 of the Hague Service Convention. This article permits a refusal of service on the ground that compliance would infringe sovereignty or security. Khan Resources Inc. did not pursue the remedies available under the Hague Service Convention but instead brought a motion in the Ontario Superior Court of Justice for an order dispensing with or substituting service. A master granted the motion. A judge of the Superior Court of Justice reversed that order, and that decision was reviewed and upheld by the Court of Appeal.

[75] Of relevance to this case is the finding of the Court of Appeal in Khan Resources that the current rule 17.05(3) is a complete code for service in Hague Service Convention contracting states and mandatory in all cases to which it applies (Khan Resources Inc., at paras. 32, 40).

This is Not a Case to Find an Access to Justice Exception to the Hague Service Convention

[76] In Khan Resources, the Court of Appeal left open whether considerations of access to justice could result in an exception to service under the Hague Service Convention in extreme circumstances. (See Khan Resources Inc., at para. 60.)

[77] It is not necessary to decide whether it is ever possible for there to be an exception to service under the Hague Service Convention because the facts of this matter cannot give rise to such an exception, even if it exists.

[78] It is important to remember that if the respondent had complied with the Hague Service Convention and no certificate of service or delivery had been provided by the competent authority in the PRC, art. 15 provides that a judge of this court could have given a judgment that would have been recognized in the PRC if three conditions were met: [page63 ]

the document to be served was transmitted to the PRC in accordance with the convention;

a period of time considered adequate by a judge of this court and not less than six months had elapsed since the date of transmission; and

no certificate of service was received from the PRC competent authority even though every reasonable effort has been made to obtain it.

[79] Article 15 of the Hague Service Convention also provides, "Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures" (emphasis added).

[80] Thus, the Hague Service Convention does provide a party the ability to request emergency relief while efforts to comply with the terms of the convention are being effected. In this case, no request for emergency relief was made.

[81] The motion judge listed four factors that were relevant to her access to justice analysis.

[82] The first factor is that the appellant has made no support payments to the respondent or their children since July 2015, resulting in unpaid mortgage payments, children's school fees and other expenses.

[83] This factor implies that there is a sense of urgency about this matter, which is being frustrated by delays resulting from the need to comply with the Hague Service Convention.

[84] On the facts of this case, it is far from clear that the need to comply with the Hague Service Convention has been a source of delay in this matter.

[85] Specifically, the respondent first moved before a judge of this court in April 2012. Had the respondent complied with the Hague Service Convention, a judge of this court could, theoretically, have given judgment upon the first application in October 2012, assuming no response from the central authority in the PRC. We say "theoretically" because this court had no jurisdiction to grant any relief because the respondent had not lived here long enough when her first application was filed.

[86] The respondent's conduct, namely, wrongly commencing her application in this court and misrepresenting the length of time she had been in Canada, caused any delay that resulted; any ensuing delay was not caused by compliance with the Hague Service Convention.

[87] The respondent's second application was issued June 5, 2015. Had she complied with the Hague Service Convention, [page64 ]a judge of this court could have given judgment upon that application in December 2015 if there had been no response from the central authority in the PRC. Instead, long after December 2015, the Divisional Court is dealing only with an appeal from an order validating service.

[88] It is true that the motion judge found that as of the date she heard the matter (December 2015), the respondent had recently sent her documents to the central authority in the PRC for service and that she had no idea when service would be effected. The motion judge also found that the circumstances of the children were such as to require some form of urgent relief. However, as already noted, it is possible under the Hague Service Convention to seek urgent provisional relief pending compliance with the Hague Service Convention. Thus, the need for urgent relief is not a ground to create an access to justice exception to compliance with the Hague Service Convention.

[89] The second factor that the motion judge relied upon was this court's inherent jurisdiction to ensure access to justice as contemplated by the Supreme Court of Canada in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7.

[90] As the Supreme Court of Canada held in Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 164 (SCC), [1976] 2 S.C.R. 475, [1975] S.C.J. No. 84, at para. 8, inherent jurisdiction is a special and extraordinary power that should be exercised sparingly and in clear cases. Given that Canada has signed the Hague Service Convention and Ontario has implemented it in the rules and given that emergency applications are permitted under the Hague Service Convention, this is not a clear case for the exercise of that power.

[91] The third factor mentioned by the motion judge was that the appellant is aware of the renewed application for validated or substituted service, as shown by material he has filed in the British Virgin Islands proceedings.

[92] The fact that the appellant is aware of this application for validated or substituted service is relevant but not controlling when considering whether access to justice requires this court to use its inherent jurisdiction in civil matters. Notice of the proceeding is not a controlling consideration because it is equally important that any order of the Superior Court of Justice has the capability of recognition and enforcement in the PRC. It is also equally important that the principles of international comity be respected. Service ex juris effectively amounts to a court extending its jurisdiction beyond its own territory (Metcalfe Estate, at paras. 51-52). In our view, there is a real concern that this court's order will be not be recognized and [page65 ]respected by the appropriate court in the PRC if the court in making the order has disregarded the sovereignty of the PRC by disregarding the terms of a treaty by which Canada and the PRC have agreed to be bound.

[93] In short, the facts underlying this matter cannot give rise to an access to justice exception to the Hague Service Convention, even if one exists.

The Appellant's Divorce Proceeding

[94] The motion judge indicated, at para. 47 of her reasons, that the appellant had commenced a divorce proceeding in the PRC and that the PRC is an objecting state as described in art. 10 of the Hague Service Convention. She observed as well that Canada is not an objecting state as described in that article and, as a result, the appellant can serve the respondent with PRC divorce documents directly while the respondent has to go through a central authority to serve the appellant and wait for up to six months for a certificate of service before proceeding further. She considered that this imbalance must inform any access to justice analysis, potentially creating an access to justice exception to the application of the Hague Service Convention.

[95] In our view, this is an error of law because no act of any one citizen of the PRC or Canada can override the sovereign right of the PRC or Canada to object under art. 10 of the Hague Service Convention. (See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, C.T.S. 1980/37, art. 39.)

Conclusion

[96] The Hague Service Convention applies to matters described in rule 1(2) of the Family Law Rules. Compliance with the Hague Service Convention is therefore mandatory. The Family Law Rules do not adequately cover service outside of Canada of documents required by those rules. Accordingly, any directions concerning such service contemplated by rule 1(7) should be given by analogy to the Rules of Civil Procedure, specifically rule 17.05(3). Without deciding that a party can be exempted from the strict requirements of the Hague Service Convention, such a conclusion is not reasonable when the party has not moved for emergency relief under art. 15 of that convention and no delay in this matter has been caused by compliance with the Hague Service Convention. There is no need to decide whether the motion judge made an error by relying upon an affidavit sworn on information and belief.

[97] This appeal is allowed. The order of the motion judge validating service of the respondent's application is set aside. [page66 ]The respondent is to pay the appellant's costs in the amount of $25,000, an amount agreed upon by the parties.

Appeal allowed.

End of Document