ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO: FS-11-72545-00
DATE: 2013-12-06
BETWEEN:
Sanjeevan Satchidananthan
Applicant
Alawi Mohideen, for the Applicant
– and –
Kasturi Sivanesan
Respondent
Robert M. Micheli, for the Respondent
HEARD: June 14, 2013
REASONS FOR JUDGMENT
Barnes J.
INTRODUCTION
[1] The respondent seeks an order setting aside the order validating service of an application for divorce in a foreign jurisdiction and the order granting the applicant a divorce.
[2] Upon reading the affidavits filed and considering the submissions of counsel, this court concludes that the affidavit filed, in support of the motion to validate service, excluded information known to applicant, about the respondent’s whereabouts in Canada. This constituted material non-disclosure as contemplated by rule 25(19) of the Family Law Rules, O. Reg. 114/99.
[3] As a consequence, the order validating service is set aside. Therefore, the divorce order was obtained without proper notice to the respondent and as a result, that order is also set aside.
ISSUES
[4] The issues in this case:
(i) Does the court have jurisdiction to set aside the order validating service, dated January 23, 2013, and the final divorce order, dated April 10, 2013?
(ii) Where the Family Law Rules are silent, do the Rules of Civil Procedure make it mandatory to follow the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters?
(iii) Should the order to validate service be set aside on the basis of any of the grounds set out in rule 25(19) of the Family Law Rules?
BACKGROUND FACTS
[5] The respondent and applicant were married in Mississauga, Ontario on May 24, 2009. The parties have been separated since November 1, 2010. On July 22, 2011, the applicant brought an application seeking divorce. The applicant did not seek any other corollary relief.
[6] The applicant’s previous counsel made several attempts to serve the respondent with the documents in Ontario. Attempts were made on October 4, 6 and 13, 2011, to serve the respondent at her place of residence. On October 21, 2011, a further attempt was made to serve the respondent at her place of employment. All these attempts were unsuccessful.
[7] On or about September 17, 2012, the respondent left Canada for the United Kingdom. On September 28, 2012, the applicant’s counsel sent a copy of the application for divorce to the law office of the respondent’s counsel.
[8] On October 1, 2012, the applicant’s counsel sent an application for divorce, by courier, to the home of the respondent’s parents in England. The respondent received this application for divorce in October 2012. The respondent failed to respond.
[9] The respondent returned to Canada on January 19, 2013. On January 23, 2013, the applicant obtained an order validating service on the respondent.
ANALYSIS
- Does the court have the jurisdiction to set aside the order validating service, dated January 23, 2013, and the final divorce order dated April 10, 2013?
[10] The respondent is challenging the divorce order on two grounds: first, that the order validating service was obtained on the basis of fraud; and second, that service could not be validated because it did not comply with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
[11] The divorce order of April 10, 2013, is a final order of this court. Rule 25(19) of the Family Law Rules permits this court to change an order that was obtained by fraud, contains a mistake or was made without notice, among other grounds. Absent a finding of fraud, mistake or the absence of notice, this court has no jurisdiction to set aside a final order of a fellow judge of this court. Arguments going to the correctness of a final order can only be made on appellate review. Mistakes or errors in law are appealable and are not subject to correction under rule 25(19): Gray v. Rizzi, 2011 ONCA 436.
[12] An order validating service is interlocutory in nature and the proper forum to deal with any issues with respect to its correctness is on an appeal to the Divisional Court: rule 38(1) of the Family Law Rules.
[13] While the issue of whether or not service should have been validated is a legal issue, the correctness of which is properly addressed on appeal to the Divisional Court, rule 25(19) permits me to set aside an order obtained on the basis of fraud, mistake or without notice. Therefore, the issue here is whether or not the order was obtained on the basis of fraud.
- Where the Family Law Rules are silent, do the Rules of Civil Procedure make it mandatory to follow the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters?
[14] While I have determined that this issue is properly dealt with on appeal, I have laid out the arguments on the interplay between the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Convention”), the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the Family Law Rules.
[15] According to the respondent, the court had no jurisdiction to grant the order validating service. This is because the applicant did not comply with the rules for the service of documentation, within countries that are signatories (contracting states) to the Convention.
[16] The respondent was served with the application for divorce in the United Kingdom. The United Kingdom is a signatory to the Convention and therefore, a contracting state.
[17] The respondent submits that the Family Law Rules make no provision for validating the service of documents outside Canada. Therefore, the Rules of Civil Procedure apply. The respondent argues that according to the Rules of Civil Procedure, service of the documentation must take place in accordance with the Convention.
[18] The respondent argues that due to the lack of jurisdiction to grant the order validating service, proper notice was not provided to the respondent. In the result, it is argued, due to the lack of proper notice, the divorce order of April 10, 2013, must be set aside pursuant to rule 25(19) of the Family Law Rules.
[19] It is not in dispute that the service of documents in the United Kingdom did not take place in accordance with the Convention. However, the applicant argues that the Convention does not apply in this case and therefore, the court had jurisdiction to grant the order validating service and the order granting the divorce. Further, since the respondent has no basis to challenge the divorce, the applicant argues that the divorce order must stand.
[20] The Family Law Rules are silent on international service. However, they provide for the approval of the irregular service under rule 6(18):
When a document has been served by a method not allowed by these rules or by an order, the court may make an order approving the service of the document,
(a) came to the attention of the person to be served; or
(b) would have come to the person’s attention if the person had
not been evading service.
[21] Per rule 17.05(3) of the Rules of Civil Procedure, an originating process served outside Ontario, in a contracting state shall be served, (a) through the central authority in the contracting state; or (b) in a manner permitted by Article 10 of the Convention.
[22] In Khan Resources Inc. v. Atemredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1, the Court of Appeal for Ontario stated that the Convention is intended to provide a complete code for service in the contracting states. The court held, at para. 49, that “where service must be effected through the Convention, a plaintiff cannot circumvent this requirement even if the defendant has actual notice of service.”
[23] Thus compliance with the convention is mandatory under the Rules of Civil Procedure but is it mandatory under the Family Law Rules?
[24] Rule 1(7) of the Family Law Rules provides:
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 reference to the Courts of Justice Act and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[25] Justice Perkins considered the interpretation of rule 1(7) in Starr v. Gordon, 2010 ONSC 4167, 88 R.F.L. (6th) 54 and wrote, at para. 14:
The existence of civil procedure rules that are not found in the Family Law Rules or that are more detailed or specific than provisions in the Family Law Rules is not, of itself, proof or even evidence that the Family Law Rules do not “cover a matter adequately”. Sometimes the omission of the rule provision is deliberate: see Van de Vrande v Butkowsky, 2010 ONCA 230 …at para. 11, where the Court of Appeal considered a provision of the Small Claims Court Rules almost identical to r. 1(7) of the Family Law Rules. Each case must be looked at to see if the Family Law Rules as whole do not respond adequately to the situation. Even if they are lacking in some respect, there are still two places to look first – the Courts of Justice Act and the statute governing the case- to see if there is guidance there. Only then and only if the court considers it appropriate, should there be reference to the civil rules. In family cases, there might be situations where it is preferable to adopt some other approach than that found in the civil rules, particularly where the civil rules have nothing specific to say- custody, access, child protection and support enforcement matters, for example.”
[26] The key issue in this case is the permissive language of rule 1(7). The court may give direction by reference to the Courts of Justice Act, the governing statute and Rules of Civil Procedure. This is supported by the interpretation in Starr.
[27] Therefore, compliance with the Rules of Civil Procedure and more specifically the Convention does not appear to be mandatory. Compliance with the Convention is one of the factors a judge on such a motion may consider in deciding whether to validate irregular service.
[28] Starr, however, was decided before Khan. The language in Khan makes for a very compelling argument that the Convention ought to be complied with, even though the Family Law Rules are silent on the issue.
[29] In any event, the issue of whether or not international service in a contracting state in accordance with the Convention is required under the Family Law Rules is a legal one; thus it is to be resolved on appeal to the Divisional Court. Therefore, I cannot consider this matter at this stage.
- Should the order to validate service be set aside on the basis of any of the grounds enumerated in rule 25(19)?
[30] The applicant swore an affidavit in support of his application for validation of service on November 2, 2012. In this affidavit he swore that prior to the respondent traveling to England, she refused to tell him her residential address. At para. 7, he states:
The Respondent contacted me occasionally on the phone and I was advised that she had changed her residence. However, she refused to divulge her address or her place of work.
And at para. 8:
On or around August 2012 the Respondent contacted me to inform that she was in difficulty and wished to go back home to Middlesex, in England. I purchased a plane ticket for her.
[31] The respondent in her affidavit states the following:
My husband paid for and booked my flight home to the UK [England] and I left in Sept 2012. In preparation for my departure, my husband came over to my North York condo on two occasions one with his friend and business partner (Sutharshan) and again two days later with his cousin (Sailan Nadarajah) to “help” me move. This is in part because I was broke and couldn’t afford a moving company, storage or the service fee for the elevator use. My things were moved into the basement of the property located on Candlestick Court, Mississauga a rental property owned by my husband. I still have furniture and clothing etc. in the candlestick basement.
[32] The applicant provided no evidence to dispute this assertion by the respondent that, prior to the respondent’s trip to England, he had contact with the respondent beyond the telephone contact he alluded to. In fact, he had helped the respondent move and he did so by going to her condominium in North York. Therefore, he knew her address and his assertion that the respondent had refused to divulge the address of her place of residence is inaccurate. This fact alone constitutes material non-disclosure sufficient to set aside the order under rule 25(19) of the Family Law Rules.
[33] In her affidavit, the respondent further elaborated:
I returned to Canada on January 19, 2013, and contacted my husband within the first week of my return to request some of my goods out of storage (my shoes and work clothes). I moved in with my friend and ex-co-worker Ruth Higgins at her residence on Apache court, Mississauga, upon my return and I still lived there renting a room at $500 per month. I then arranged to meet with my husband’s father to access my goods out of storage [basement of the Candlestick investment rental property]. My husband and her family and his family were aware that I was returning to Canada as I called my husband from England and advised him I’ll be back in January.
[34] The applicant is silent on this assertion by the respondent. Therefore, I conclude that the applicant was aware that the respondent was returning to Canada prior to January 23, 2013, the date when the order of validation was granted. However, his affidavit in support was sworn, in November 2012, prior to the respondent’s return to Canada. The omission of this fact from the affidavit does not appear to be deliberate, however, it is an important fact that should have been brought to the attention of the court.
[35] The motion to validate service was essentially a motion brought without notice. There is a high onus on a party seeking to obtain an order without notice to provide the court with all the material facts, for or against that party’s interest, to enable the court to make a decision on the motion: rule 25(19) of the Family Law Rules; P. (N.) Re, (2001) 2001 28184 (ON SC), 15 R.F.L. (5th) 151(Ont. S.C.).
[36] Under these circumstances, it is inconsequential whether the responding party has a defence on the merits. To hold otherwise would be an affront to the court process and the administration of justice.
[37] It is a fact that the applicant was aware of a residential address for the respondent. His assertion that he was unaware of such an address, as described previously, was misleading. This was fraudulent and constitutes a material non-disclosure of a material fact which in turn invalidates the order validating service.
[38] In the result, the order validating service of January 23, 2013, is set aside. Thus, proper notice of the application for divorce was not provided to the applicant. Therefore, the divorce order dated April 10, 2013, is set aside.
[39] The respondent’s application for support and other corollary relief is adjourned sine die. The parties may bring this motion before the court in consultation with the trial coordinator at a later date. Parties may submit no more than a two-page cost outline within 20 days.
Barnes J.
Released: December 6, 2013
COURT FILE NO: FS-11-72545-00
DATE: 2013-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sanjeevan Satchidananthan
Applicant
– and –
Kasturi Sivanesan
Respondent
REASONS FOR JUDGMENT
Barnes J.
Released: December 6, 2013