ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4060/08

DATE: 2014-04-24

BETWEEN:

SUSAN LYNNE PITMAN
Applicant

– and –

JOHN JAMES MOL also known as IAN MOL
Respondent

David J. Ashbee, Counsel for the Applicant

No one appearing

HEARD: April 7, 2014

REASONS FOR JUDGMENT

Gray J.:

[1] This is an undefended trial. Almost invariably, undefended trials are dispatched expeditiously, with little fanfare. As long as service on the respondent is proved, the matter can be disposed of on affidavit evidence, or, in some cases, with brief oral evidence.

[2] However, in this case, the matter is not so simple. That is because the respondent resides in Georgia, in the United States of America. That raises for consideration the applicability of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, and, if it applies, whether it has been complied with.

[3] In Satchidananthan v. Sivanesan, [2013] O.J. No. 5562 (S.C.J.), Justice Barnes mooted the question of whether the Convention applies to family law proceedings. At the end of the day, he did not have to decide that question. In the case before me, it is necessary to answer the question.

[4] For the reasons that follow, I hold that the Convention applies to family law proceedings, and that it was complied with in this case.

Background

[5] The parties were married on March 7, 1987, and separated on May 13, 1995. They have two children: Emily, born January 15, 1990, and Delia, born February 16, 1993.

[6] Justice Price issued a final order on December 18, 2008, which terminated child support for Emily, adjusted the child support payable for Delia, and addressed outstanding arrears.

[7] The applicant now brings a Motion to Change the final order of Justice Price.

[8] The Motion to Change was issued on January 16, 2014. The respondent resides in Hampton, Georgia, USA. The applicant, through a law firm in Georgia, retained Ms. Sharon Snellings to effect service of the relevant documents on the respondent. Ms. Snellings has provided an affidavit of service, in which she deposes that she personally served the relevant documents on the respondent on January 20, 2014, at 3:19 p.m.

[9] The Official Code of Georgia provides for the training and certification of process servers. They are entitled to serve process for any court of the state and anywhere within the state. Ms. Snellings is a certified member of the Georgia Association of Professional Process Servers, and is a certified process server in the State of Georgia.

[10] The respondent failed to respond to the Motion to Change within 30 days as required under Rule 15 (10)(a) of the Family Law Rules. The applicant requested an uncontested trial, which was held before me on April 7, 2014.

[11] At the hearing of the uncontested trial, I advised Mr. Ashbee, counsel for the applicant, that I was satisfied with his affidavit material as it relates to the merits of the Motion to Change. However, I raised with him the question of the applicability of the Convention. I advised him that, subject to the validity of service of the material, I was satisfied that his client is entitled to the relief she seeks.

[12] Mr. Ashbee requested an opportunity to make written submissions as to the applicability of the Convention. He provided written submissions subsequently, which I found to be very helpful.

[13] As to the validity of service, there are two questions:

a. Does the Convention apply to family law proceedings?

b. If the Convention applies, has it been complied with in this case?

[14] I will address each of these questions in turn.

Analysis

(a) Does the Convention apply?

[15] The Convention is one of a number of conventions adopted by the Hague Conference on Private International Law. The Conference itself has its own website, from which most information about the various conventions, including this one, can be obtained: www.hcch.net . The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was adopted by the tenth session of the Hague Conference on Private International Law. It became effective on November 15, 1965. There are currently 68 contracting states, which include Canada and the United States of America. Canada’s accession to the Convention took effect in 1989. The United States of America’s accession took effect in 1969.

[16] Article 1 of the Convention provides as follows:

Article 1

The present 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.

This Convention shall not apply where the address of the person to be served with the document is not known.

[17] While the Convention is binding on all contracting states as a matter of international law, in order to make it effective within Canada it is necessary to enact legislation or appropriate rules. For matters under provincial jurisdiction, this requires action by the provinces: see Attorney General of Canada v. Attorney General of Ontario, 1937 362 (UK JCPC), [1937] A.C. 326 (P.C.).

[18] Service of process outside Ontario is not specifically dealt with in legislation. However, it is dealt with in rules made under the Courts of Justice Act.

[19] Section 66 of the Courts of Justice Act provides, in part, as follows:

66. (1) Subject to the approval of the Attorney General, the Civil Rules Committee may make rules for the Court of Appeal and the Superior Court of Justice in relation to the practice and procedure of those courts in all civil proceedings, except for proceedings in relation to which the Family Rules Committee may make rules under section 68.

(2) The Civil Rules Committee may make rules under subsection (1), even though they alter or conform to the substantive law, in relation to,

(c) commencement of proceedings, representation of parties and service of process in or outside Ontario;

[20] The rule-making authority of the Family Rules Committee is provided for in section 68, which provides, in part, as follows:

68. (1) Subject to the approval of the Attorney General, the Family Rules Committee may make rules for the Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice in relation to the practice and procedure of those courts in the proceedings referred to in the Schedule to section 21.8.

(2) Subsections 66 (2), (3) and (5) apply with necessary modifications to the Family Rules Committee making rules under subsection (1).

[21] As specified in section 68(1), the Family Law Rules apply to practice and procedure in the courts in the statutory proceedings referred to in the schedule to section 21.8:

a. Change of Name Act

b. Child and Family Services Act, Parts III, VI and VII

c. Children’s Law Reform Act, except sections 59 and 60

d. Divorce Act (Canada)

e. Family Law Act, except part V

f. Interjurisdictional Support Orders Act, 2002

g. Family Responsibility and Support Arrears Enforcement Act, 1996

h. Marriage Act, section 6

[22] While divorce is under federal jurisdiction, Parliament has adopted provincial rules of practice and procedure for proceedings under the Divorce Act: see Divorce Act, section 2(3).

[23] For proceedings governed by the Rules of Civil Procedure, the Convention is made specifically applicable where service is to be made outside Canada within a contracting state. Rule 17.05 provides as follows:

17.05 (1) In this rule,

“contracting state” means a contracting state under the Convention; (“État contractant”)

“Convention” means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965. (“Convention”)

(2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served..

(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.

(4) Service may be proved,

(a) in the manner provided by these rules for proof of service in Ontario;

(b) in the manner provided by the law of the jurisdiction where service is made; or

(c) in accordance with the Convention, if service is made in a contracting state.

[Emphasis added]

[24] In Khan Resources Inc. v. Atomredmetzoloto JSC (2013), 2013 ONCA 189, 115 O.R. (3d) 1 (C.A.), the Court of Appeal held that where Rule 17.05 (3) applies, it is mandatory. In other words, the procedures stipulated by the Convention must be followed without exception. This is so even if the responding party has had actual notice of service through other means: see Khan Resources at para. 49.

[25] The Court referred with approval to the decision of the Alberta Court of Appeal in Metcalfe v. Yamaha Motor Powered Products Co. (2012), 2012 ABCA 240, 536 A.R. 67 (C.A.). The Alberta Court of Appeal held that the Convention must be applied in all cases, and service that is not in accordance with the Convention cannot be validated through Alberta Rule 11.27. That rule provides that the court can validate service outside Alberta in a manner that is not specified by the rules “if a court is satisfied that the method of service used brought or was likely to have brought the document to the attention of the person to be served.” At para. 47 of Khan Resources, Tulloch J.A. quoted from para. 50 of Metcalfe, where McDonald J.A. stated :

Allowing courts to validate service which fails to comply with the international standard would undermine that purpose, as the Hague Convention would no longer be a comprehensive authority for service abroad involving the signatories to that Hague Convention. Canadian law is presumed to comply with that purpose. Therefore, rule 11.27 should not be used to avoid the international standard created by the Hague Convention. There are many other nations that are not signatory to the Hague Convention and rule 11.27 undoubtedly applies to service situations within those nations.

[26] Ontario Rule 16.08 is the equivalent to Alberta rule 11.27, and it is clear that rule 16.08 cannot be used to circumvent the requirements of the Convention where it applies.

[27] As did McDonald J.A. in Metcalfe, Tulloch J.A. referred to the principle that domestic law should be read, where possible, to comply with Canada’s international legal obligations. At para. 33, he quoted from the reasons of Goudge J.A. in Bouzari v. Iran (2004), 2004 871 (ON CA), 71 O.R. (3d) 675 (C.A.) at para. 64:

Where Canada has undertaken treaty obligations, it is bound by them as a matter of conventional international law. Parliament is then presumed to legislate consistently with those obligations. Thus, so far as possible, courts should interpret domestic legislation consistently with these treaty obligations.

[28] At paras. 50-53 of Khan Resources, Tulloch J.A. referred with approval to three decisions of this court, in which it was held that the procedures required by the Convention are mandatory: Dofasco Inc. v. Ucar Carbon Canada Inc. (1998), 27 C.P.C. (4th) 342 (Ont. Gen. Div).; Samina North America Inc. v. H3 Environmental II LLC, 2004 65382 (ON SC), [2004] O.J. No. 6229 (S.C.J.), affd. on other grounds, [2005] O.J. No. 4644 (C.A.); and Campeau v. Campeau, [2004] O.J. No. 4788 (S.C.J.).

[29] Based on Khan Resources, it is clear that if this case were governed by the Rules of Civil Procedure, the Convention would be held to be applicable and its procedures mandatory. However, this case is governed by the Family Law Rules. Do those rules dictate a different result?

[30] The Family Law Rules do not specifically provide for service internationally, or even for service outside Ontario. Rather, they provide for what is termed “regular service” and “special service”. As well, they authorize the court to approve service that has not been effected in accordance with the rules. Special service is, in practical terms, personal service, and it must be used for originating proceedings (applications and motions to change) and contempt proceedings or other proceedings where imprisonment is a possibility.

[31] Rule 6 (18) of the Family Law Rules provides as follows:

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 if 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.

[32] This is similar to Rule 16.08 of the Rules of Civil Procedure, and Alberta Rule 11.27, which was dealt with by the Alberta Court of Appeal in Metcalfe, and which was held not to authorize service in a manner inconsistent with the requirements of the Convention.

[33] Rule 1 (7) of the Family Law Rules provides as follows:

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 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.

[34] Since the Family Law Rules are silent on the issue of international service, must it be concluded that the Convention has no application where service of documents in a family law matter must be effected within a contracting state?

[35] As noted earlier, Justice Barnes, in Satchidananthan, supra, canvassed the competing arguments, but in the final analysis did not have to answer the question.

[36] Justice Barnes referred to Family Law Rules 6 (18) and 1 (7) and suggested that compliance with the Convention does not appear to be mandatory. He suggested that compliance with the Convention might be one of the factors a judge may consider in deciding whether to validate irregular service. However, at para. 28, he stated that the language in Khan Resources 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.

[37] In my view, compliance with the Convention is mandatory in family law cases. I say this for a number of reasons.

[38] I start with the words of the Convention. Above, I reproduced Article 1. It 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.

[39] There is no doubt that a family law case is a “civil” case. Earlier, I listed the statutory proceedings for which the Family Law Rules will govern. In addition to those statutes, the Schedule under section 21.8 of the Courts of Justice Act also lists the following proceedings for which the Family Law Rules will apply:

a) Proceedings for the interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement, paternity agreement, family arbitration agreement or family arbitration award;

b) Proceedings for relief by way of constructive or resulting trust or a monetary award as compensation for unjust enrichment between persons who have co-habited;

c) Proceedings for annulment of a marriage or for a declaration of validity or invalidity of a marriage;

d) Appeals of family arbitration awards under the Arbitration Act, 1991.

There is no doubt that those proceedings, as well as the statutory proceedings listed in the Schedule, are civil proceedings. The fact that there are separate rules governing them does not affect their status as civil proceedings. Indeed, prior to the promulgation of the Family Law Rules, they were governed by the Rules of Civil Procedure.

[40] There is nothing in the Convention that suggests that family law proceedings are to be carved out and not made subject to the Convention, which is otherwise applicable to all civil and commercial matters.

[41] The point is forcefully made by the Court of Appeal in Khan Resources that, to the extent possible, legislation (including rules and regulations made pursuant to legislation) must be read to comply with Canada’s international legal obligations.

[42] In essence, the Convention requires each contracting state to make two promises:

(a) the contracting state will effect service of a judicial document from another contracting state in accordance with the Convention;

(b) the contracting state will require that a judicial document, to be served in another contracting state, be served in accordance with the Convention.

[43] The Ontario Court of Appeal in Khan Resources and the Alberta Court of Appeal in Metcalfe have made it clear that rules of general application, that might appear to make it acceptable to authorize service that is not in accordance with the Convention, are to be read down. Just as Alberta rule 11.27 was read down, Family Law Rule 6 (18), which is to the same effect, must also be read down. That Rule cannot authorize service that is not in accordance with the Convention if the Convention applies.

[44] By the same token, in my view, rule 1 (7) must be read so as to require service in accordance with the Convention within a contracting state.

[45] Rule 1 (7) applies “if these rules do not cover a matter adequately”, in which case the court may give directions. The rules do not cover international service at all. In such a case, “the practice shall be decided by analogy to these rules, by 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.” Thus, the practice shall be decided:

(a) by analogy to the Family Law Rules;

(b) by reference to the Courts of Justice Act and the Act governing the case;

(c) if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[46] In the case of international service, there is no Family Law Rule to which reference can be made by analogy. Reference to the Courts of Justice Act and the Rules of Civil Procedure provide the only guidance for service within a contracting state. The only applicable rule is Rule 17.05 which, as held by the Court of Appeal in Khan Resources, requires service in accordance with the Convention. Thus, in my view, service of documents in a family law matter, within a contracting state, must be effected in accordance with the Convention.

[47] In my view, this is the only interpretation that produces a sensible result. A contrary conclusion would mean that there are two types of civil proceedings that are subject to different rules for international service, and, in the case of one of them, Canada will be in breach of its international obligations. As forcefully stated by the Court of Appeal in Khan Resources, such a conclusion is to be avoided if possible

[48] For these reasons, I hold that the Convention must be complied with for service of family law proceedings within contracting states.

(b) Has the Convention been complied with in this case?

[49] There are a number of methods of service permitted by the Convention. They are discussed extensively in a handbook published by the Hague Conference on Private International Law: Practical Handbook on the Operation of the Hague Service Convention (2006).

[50] The main method of service (called the “main channel of transmission” in the handbook) is through a “Central Authority”. Article 2 of the Convention provides as follows:

Article 2

Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6.

Each State shall organise the Central Authority in conformity with its own law.

[51] In the United States, the Central Authority is the Federal Department of Justice, Civil Division. Since 2003, the Department of Justice has delegated the service of process function performed by the Central Authority to a private contractor, Process Forwarding International, located in Seattle, Washington. The contract runs for six years and will expire on January 29, 2015.

[52] There are a number of exceptions to the requirement that the Central Authority be used for the service of documents. For example, pursuant to Article 8, service may be effected through diplomatic or consular agents.

[53] Another exception, which has significance here, is through Article 10, which provides as follows:

Article 10

Provided the State of destination does not object, the present Convention shall not interfere with –

a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

[54] The most relevant provision is Article 10 (c) which effectively permits service within a contracting state through the normal procedures for service permitted within the contracting state.

[55] Article 10 applies only where “the State of destination does not object”. A useful table, that discloses whether a contracting state opposes or does not oppose the use of Articles 10(a), (b) or (c), is found on the Hague Conference’s website. Thirty-six, or over half, of the contracting states object to the use of Article 10 (c) of the Convention.

[56] However, the United States is not one of the countries that objects to the use of Article 10 (c).

[57] It has been concluded, in a number of American cases, that Article 10 (c) authorizes the use of private process servers, if their use is authorized in the contracting state where the documents are to be served: see White v. Ratcliffe, 674 N.E. 2d 906 (1996, Appellate Court of Illinois, Second District); Koehler v. Dodwell, 152 F. 3d 304 (1998, US Court of Appeals, Fourth Circuit); and Balcom v. Hiller, 54 Cal. Rptr. 2d 536 (1996, Court of Appeal of California, Second Appellate District, Division Four). As stated by Justice Geiger in White v. Ratcliffe, supra at p.912, in discussing whether Article 10(c) permits service in England by a private process server:

Sub paragraph (c) delineates three categories of persons who are permitted to serve process: (1) judicial officers; (2) officials; and (3) other competent persons. Therefore, provided that the contracting country does not object, a foreign plaintiff would be permitted to utilize any individual within one of these three categories to effectuate service of process. An independent process server authorized by English law to serve process falls within the category of “other competent persons” permitted to effectuate service.

[58] As noted earlier, Rule 17.05 (3) (b) permits service in a manner that is permitted by Article 10 of the Convention and that would be permitted if the document were being served in Ontario. The use of private process servers is permitted in Ontario.

[59] In the case before me, the process server employed by the plaintiff is authorized, within the State of Georgia, to serve court documents anywhere in Georgia. The respondent was personally served by the process server within the State of Georgia. Thus, he was served in a manner that is authorized by Article 10 (c) of the Convention, and service in this way is permissible in Ontario. Pursuant to Rule 17.05 (3) (b) of the Rules of Civil Procedure this would be acceptable, and is likewise acceptable under the Family Law Rules.

Disposition

[60] Since the respondent was properly served with the Motion to Change and appropriate documents, and has not responded, the applicant was permitted to proceed with an undefended trial. Based on her affidavit material, I am persuaded she is entitled to the order she seeks. I have signed the Order requested by the applicant, and a Support Deduction Order.

Gray J.

Released: April 24, 2014

COURT FILE NO.: 4060/08

DATE: 2014-04-24

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

SUSAN LYNNE PITMAN
Applicant

– and –

JOHN JAMES MOL also known as IAN MOL
Respondent

REASONS FOR JUDGMENT

Gray J.

Released: April 24, 2014