Court File and Parties

Court File No.: FS-17-421418 Date: 20181107 Superior Court of Justice - Ontario

Re: Sneha Tiwari, Applicant And: Vivek Tiwari, Respondent

Before: Sanfilippo J.

Counsel: Trevor Smith, for the Applicant No one appearing, for the Respondent, motion without notice

Heard: November 6, 2018

Endorsement

Overview

[1] The Applicant, Sneha Tiwari, brought this Motion for an Order for substituted service to permit her to serve an Application for Divorce on her husband, the Respondent Vivek Tiwari, in India by email and by regular mail.

[2] For the reasons that follow, I grant the Order permitting substituted service to be effected by email and regular mail to the Respondent in India.

I. BACKGROUND

[3] The Applicant deposed that she and the Respondent were married on March 5, 2011 in India. The Applicant states that on August 24, 2014, she moved from India to Canada for the purpose of advancing her education and has since secured full-time employment. The Applicant deposed that the Respondent was to join her in Canada upon completing his immigration application, but this did not occur. Apart from a brief visit by the Respondent to Toronto in February 2017, the Applicant swore that she has lived separate and apart from the Respondent since August 2014.

[4] The Applicant produced a letter dated September 21, 2017, said to have been received by her in October 2017, wherein Mr. Harish Sharma, a lawyer retained by the Respondent in New Delhi, India, notified the Applicant that the Respondent had instructed him to advance divorce proceedings, barring reconciliation. This letter set out the Respondent’s address in India.

[5] On December 11, 2017, the Applicant initiated this Application for Divorce. Although the Applicant wrote on the Application that the address for the Respondent was “unknown”, the Applicant had confirmation of the Respondent’s address from his lawyer’s letter.

[6] The Applicant’s stated basis for divorce is that the parties have resided separate and apart for more than a year with no prospect of reconciliation.

II. THE RULES FOR SERVICE THROUGH THE CONVENTION

[7] As the Respondent is a citizen of India, and has resided in India throughout the marriage, the Applicant has taken steps to serve her Application for Divorce on the Respondent in India. India, like Canada, is a signatory, and thereby a Contracting State, to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 658 UNTS 163, UKTS 1969/50 (the “Convention”).

[8] Article 1 of the Convention states 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.” Family law matters fall within the scope of the Convention: Wang v. Lin, 2016 ONSC 3967, 132 O.R. (3d) 48 (Div. Ct.) at paras. 54-57; Xue v. Zheng, 2018 ONSC 1979. Since the Convention is applicable to the Applicant’s service of the Notice of Application in India, other procedural rules cannot be used in place of the Convention: Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1. In particular, orders dispensing with service, validating service, or for substituted service are not available until service has been attempted under the Convention: Wang v. Lin at para. 75, citing Khan Resources Inc. at paras. 32, 40.

[9] Rule 8(5) of the Family Law Rules, O. Reg. 114/99 requires that the Application for Divorce must be served by special service. Family Law Rule 6(3) outlines how special service of the Application for Divorce can be effected.

[10] The Family Law Rules do not contain any specific provision for service outside Ontario. Family Law Rule 1(7) states that where the Family Law Rules do not address a matter adequately, reference may be made to the Rules of Civil Procedure, R.R.O 1990, Reg. 194. Rule of Civil Procedure 17.05(3) incorporates the Convention for service outside of Ontario to a Contracting State, such as India, as follows:

17.05(3) – Manner of Service in Convention States – 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 that would be permitted by these rules if the document were being served in Ontario.

[11] Article 10 of the Convention states that if the state of destination for service has not objected to Article 10, the service may be effected in accordance with the rules for service in Ontario. However, if the state of destination for service has objected, then service must be made through the state’s Central Authority. India has objected to Article 10, meaning that the Application for Divorce in India must be served through India’s Central Authority.

III. ATTEMPTED SERVICE THROUGH THE CENTRAL AUTHORITY

[12] On January 16, 2018, the Applicant’s Ontario lawyer delivered in duplicate by regular mail her Application for Divorce and a Request for Service, prepared in the form required by the Convention, to the Central Authority of India at the address provided for by the Convention: Ministry of Law and Justice, Department of Legal Affairs, Room No. 439-A, 4th Floor, Shastri Bhavan, New Delhi, India.

[13] The Applicant provided the Respondent’s address for service in India to the Central Authority of India as it appeared in the Respondent’s lawyer’s letter of September 21, 2017.

[14] The Applicant produced in evidence a letter received from the Central Authority of India in March 2018. In the letter, the Central Authority of India acknowledged receipt from Canada of a request for assistance under the Convention for service of the legal document on the Respondent. The letter also included a copy of a letter from the Central Authority of India to the District Judge of the Gurgaon District Court, in Gurgaon, Haryana, asking the District Judge to serve the document on the Respondent at the address for service provided by the Applicant.

[15] The Applicant deposed that approximately six months after receiving this letter, on September 18, 19 and 20, 2018, her Ontario legal counsel attempted to contact the Central Authority of India by telephone, email and fax to obtain an update on the status of the service of the Application for Divorce on the Respondent in India. No response was received.

[16] Since forwarding the Application for Divorce to the Central Authority of India on January 16, 2018, the only response the Applicant has received from the Central Authority of India was the acknowledgement in March 2018. Particularly, the Applicant has not received a certificate of service from the Central Authority of India or advice from the Central Authority that service cannot be effected through the Convention.

IV. ANALYSIS

[17] Rule of Civil Procedure 17.05(3) (I've linked to the specific rule within the regulation), combined with India’s opposition to Article 10 of the Convention, means that service of the Application for Divorce must first be attempted through the Central Authority for India. Article 3 of the Convention states that the request for the service of the legal document shall be made by “the authority or judicial officer competent under the law of the State in which the documents originate” to the Central Authority of the destination state:

The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.

[18] The materials filed on this motion show that the request was made to the Central Authority of India using the “model [request form] annexed to the present Convention” and in duplicate. The Notice of Application was attached to the request form. The issue that arose on this Motion was whether the request to the Central Authority of India was properly made by the “authority” or “judicial officer competent under the law of the State in which the documents originate”, as is required by Article 3 such that the request was a proper attempt to effect service through the Convention.

[19] Ontario’s Central Forwarding Authority is the Ontario Ministry of the Attorney General. The Applicant’s request for service of the Application for Divorce was not provided by the Applicant to the Ontario Ministry of the Attorney General for transmission to the Central Authority of India, but rather was sent by the Applicant’s Ontario legal counsel directly to the Central Authority of India. For this to constitute a proper request of the Central Authority of India, the Ontario lawyer must come within the Convention’s definition of a “judicial officer competent under the law of the State in which the documents originate”.

[20] A literal interpretation of Article 3 makes clear that the Ontario Ministry of the Attorney General is the “authority” in Ontario, which means that “judicial officer” is someone other than the Ministry. In considering whether an Ontario lawyer is a “judicial officer” for the purposes of Article 3 of the Convention, reference to the Law Society Act, R.S.O. 1990, c. L.8 is helpful, which states in Article 29 that: “every person who is licensed to practise law in Ontario as a barrister and solicitor is an officer of every court of record in Ontario.”

[21] Interpretation of the scope of Article 3 of the Convention is assisted by noting that the administrators of the Convention recognize that Ontario lawyers are “judicial officers” for the purpose of Article 3. The Hague Conference on Private International Law’s website lists Canada’s forwarding authorities under Article 3 of the Convention on a page titled “Canada - Forwarding Authorities (Art. 3)”, stating that “requests for service to Central Authorities of other States may be transmitted by: … Members of the law societies of all provinces and territories”: Canada – Forwarding Authorities (Art. 3), online: Hague Conference on Private International Law. Further, the Practical Handbook on the Operation of the Service Convention, 4th ed. (the Hague: Hague Conference on Private International Law, 2016), published by the Permanent Bureau of the Hague Conference on Private International Law, at para. 130 confirms that in Canada the members of the law societies are recognized as “judicial officers” within the meaning of Article 3:

As to English solicitors, the authors of the Convention had accepted that they should indeed be regarded as competent authority or judicial officers [references omitted]. At the meeting of the Special Commission in 1977, the issue of requests for service sent by attorneys was raised. It was pointed out that, in certain legal systems, attorneys serve judicial documents under the supervision of a court, and could accordingly be assimilated to judicial officers (officiers ministériels) [references omitted]. In Canada, for example, members of the law societies of all provinces and territories (i.e. lawyers) have been identified as one of the forwarding authorities under the Convention (see the practical information chart for Canada available on the Service Section of the Hague Conference website).

[22] I conclude that a request for service properly forwarded by an Ontario lawyer to a Central Authority of a destination Contracting State is a request by a “judicial officer competent under the law of the State in which the documents originate”, as required by Article 3 of the Convention. As such, the request for service sent by the Applicant’s Ontario lawyer to the Central Authority of India on the prescribed form was a proper request for service in India for the purposes of the Convention and Rule of Civil Procedure 17.05(3).

[23] Article 15 of the Convention is a form of default provision in the event that the Central Authority of the destination state does not respond to the request for service. Article 15 states, in pertinent part, as follows:

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled:

a) The document was transmitted by one of the methods provided for in this Convention;

b) A period time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

c) No certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

[24] In Wang v. Lin, at paras. 77-78, the Divisional Court held that Article 15 allows an Ontario Court to give judgment in the absence of confirmed service of process abroad in a Contracting State where the three conditions of Article 15 have been met. This would include a right to grant an order for substituted service, or an order validating service or dispensing with service, as part of the process leading to judgment.

[25] The Applicant has not received a certificate of service from the Central Authority of India in the almost ten months since the request for service was sent, and the almost eight months since the Central Authority of India acknowledged receipt of the Ontario legal document and requested that the Gurgaon District Court serve the legal document on the Respondent. Indeed, the Applicant has not received any response at all since the letter acknowledging receipt, despite her efforts to contact the Central Authority of India by telephone, email and fax in September 2018.

[26] I find that the evidence submitted by the Applicant on this Motion establishes all the conditions required by Article 15 of the Convention. As such, I conclude that the Applicant may proceed with steps necessary to establish an entitlement to judgment in her Application for Divorce, notwithstanding her inability to effect service on the Respondent through the Convention. As the first step towards establishing this entitlement, the Applicant has requested on this Motion that I grant an Order for substituted service.

Substituted Service

[27] Family Law Rule 6(15) provides that a Court may order that a document be served by substituted service, using a method chosen by the Court, where the party making the motion establishes that steps have been taken to locate the person to be served and that “the method of service [proposed] could reasonably be expected to bring the document to the person’s attention.”

[28] I am satisfied that the Applicant has taken proper steps to locate the person to be served and to attempt to serve that person with the Application for Divorce. The steps taken by the Applicant under the Convention, the Family Law Rules and the Rules of Civil Procedure show that the elements of Family Law Rule 6(15) necessary for substituted service are established.

[29] The Applicant has deposed that the Respondent receives email communications at [v. ...]. Further, the Applicant has established an address for service for the Respondent in India at [R. ...]. The record contains a letter dated September 21, 2017 from a lawyer retained in India by the Respondent to pursue a divorce. Service of the Application for Divorce by email, by regular mail to the Respondent’s postal address in India, and by regular mail to the lawyer in India who represented that he had authority to act on behalf of the Respondent can reasonably be expected to bring this proceeding to the Respondent’s attention.

[30] I have concluded that the Applicant has established the elements necessary for substituted service on the Respondent in India through email, regular mail to the Respondent’s postal address in India and regular mail to the Respondent’s lawyer in India.

V. DISPOSITION

[31] The Applicant’s motion for substituted service is granted. The Applicant may serve her Application for Divorce, and any materials related to this proceeding, on the Respondent by email at the email address identified for the Respondent, [v. …], by regular mail at the postal address in India identified for the Respondent, [R. …], and by regular mail to the lawyer in India who was known by the Applicant to act for the Respondent in India, [C. …].

Sanfilippo J. Date: November 7, 2018