SUPERIOR COURT OF JUSTICE - ONTARIO
Parties
RE: Hong (aka Jennifer Wang) Wang, Applicant
AND:
Wei Lin, Respondent
Counsel and Hearing
BEFORE: Kiteley J.
COUNSEL: D. S. Melamed and C. Levitan, for the Plaintiff
HEARD: December 10, 2015
ENDORSEMENT
1In a prior 14B motion (on written materials only) for an order validating service on the Respondent who resides in the Peoples Republic of China, I released reasons1 in which I dismissed the motion but allowed counsel for the Applicant to renew the motion with additional evidence and a factum. Counsel has taken that step.
2The issue is impact of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention) on a matter that is covered by the Family Law Rules. For the reasons that follow, I conclude that (a) the Convention does not apply; and (b) if it does apply, this case falls into the limited exceptions for which the Court may order that compliance is not required.
3At paragraphs 5-18 of the earlier endorsement, I set out briefly the circumstances of the First Application and this Second Application. The Second Application does not include a claim for child and spousal support but it does include a request that the stay imposed on the First Application be lifted and if an order is granted, the Applicant would ask that the two Applications be combined and she would proceed with a motion for interim child and spousal support. While that context is somewhat convoluted, I will assume for purposes of this motion that the Applicant will be asking for an order for child and spousal support and for relief, inter alia, affecting the property in Ontario, including the home in which the Applicant and the children reside which is jointly owned by the Applicant and the Respondent.
4As a result of an ex parte motion, in an endorsement dated November 26, 2015, I made an order in which I extended the time for the serving of the Applicant’s financial statement to 7 days following the filing of an Answer, or if the Respondent does not file an Answer, the Applicant shall not be required to serve a financial statement; and an order extending the time for serving the Applicant’s Additional Required Financial Disclosure to 30 days following the Respondent’s filing of an Answer and if the Respondent did not file an Answer to 30 days prior to a final hearing. The impact of that order was to significantly reduce the documents that had to be translated in order for the Applicant to comply with requirements to effect service within the parameters of the Convention.
Relief sought in this motion
5On behalf of the Applicant, the relief sought is as follows:
(a) an order pursuant to rule 6(15) of the Family Law Rules and rule 16.04 of the Rules of Civil Procedure for substituted service, permitting the Applicant to serve a copy of this Order, her Application, Financial Statement and Certificate of Financial Disclosure and any other documents in this proceeding by email and by courier to the Respondent’s residence in China, his corporate address in China, his counsel in the British Virgin Islands and his counsel in Hong Kong.
or in the alternative
(b) an order pursuant to rule 3(5) and rule 6(18) of the Family Law Rules and rule 3.02 and rule 16.08 of the Rules of Civil Procedure validating service of the Application, Financial Statement and Certificate of Financial Disclosure and deeming service of those documents as of the earliest of dates between July 10, 2015 and September 17, 2015.
6In support of the motion the following affidavits have been filed in addition to those affidavits filed in support of the earlier 14B motion:
(a) affidavits of Hong Wang sworn November 20 and December 3, 2015 and
(b) affidavit of Jenna Himelfarb sworn November 19, 2015.
Background
7The parties married in the PRC in 2000 when both were citizens of the PRC. The children were born in 2002 and 2003. In October 2005, the Applicant and Respondent and the children immigrated to Canada. On June 7, 2010, the children and the Applicant became Canadian citizens. The Applicant deposed that the Respondent lost his Canadian permanent residency status on account of his frequent travel back and forth from Canada to the PRC and thus he remains a Chinese citizen.
8In September 2010, the children and the Applicant reunited with the Respondent in the PRC. Because the PRC does not recognize dual citizenship, the Applicant and the children entered the country on a visitor’s visa which allowed a maximum single stay of 90 days. Certain financial transactions occurred between March 2011 and June 2012. The Applicant and Respondent separated in November 2011.
9In April, 2012, the Applicant returned to Toronto. On April 17, 2012, the Applicant commenced the First Application in the Superior Court of Justice and brought a motion for a world-wide Mareva injunction on an ex parte basis to freeze the Respondent’s assets. The motion was granted on April 18, 2012 on the basis that the court had jurisdiction under s. 3(1) of the Divorce Act.
10The Respondent brought a motion to stay the First Application on the basis that the Court lacked jurisdiction under either the Divorce Act or the Family Law Act. While the Court reserved judgment on the Respondent’s motion, the Applicant moved the children from the PRC to Canada. The Respondent then moved for the children’s return to the PRC pursuant to s. 40(b)(3) of the Children’s Law Reform Act.
11On June 7, 2012, Jarvis J. released an endorsement in which he concluded that the Court did not have jurisdiction pursuant to the Divorce Act on the basis that the Applicant had not been ordinarily resident in Ontario for one year immediately preceding the commencement of the Application as required pursuant to s. 3(1) of the Divorce Act. The Court of Appeal dismissed the Applicant’s appeal and the First Application was stayed.
12In May, 2012, the Respondent commenced family law proceedings in the PRC but that court refused to grant a divorce on the basis that the Applicant and Respondent had not been separated for two years as of the date of the commencement of the proceedings.
13On April 19, 2012, the Applicant secured an ex parte order of the Commercial Court of the British Virgin Islands (the BVI) freezing the Respondent’s assets in that jurisdiction. Those proceedings continue including a hearing on December 14 and 15, 2015.
Analysis
A. Does the Convention apply to family law proceedings?
14Pursuant to rule 8(1) of the Family Law Rules, to start a case in a family law matter in Ontario, the applicant must file an application which must be served immediately on the other party. Rule 6 provides for “regular service” and “special service”. For purposes of serving the Application (and related documents), rule 8(5) requires “special service”. The relevant parts of rule 6 are as follows:
METHODS OF SERVICE
- (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. O. Reg. 114/99, r. 6 (1).
(1.1) . . .
REGULAR SERVICE
(2) Regular service of a document on a person is carried out by,
(a) mailing a copy to the person’s lawyer or, if none, to the person;
(b) sending a copy by courier to the person’s lawyer or, if none, to the person;
(c) depositing a copy at a document exchange to which the person’s lawyer or, if none, the person belongs;
(c.1) if the person consents or the court orders, using an electronic document exchange;
(d) faxing a copy to the person’s lawyer or, if none, to the person; or
(e) if the person consents or the court orders, emailing a copy to the person’s lawyer or, if none, to the person. O. Reg. 114/99, r. 6 (2); O. Reg. 140/15, s. 1 (1, 2).
SPECIAL SERVICE
(3) Special service of a document on a person is carried out by,
(a) leaving a copy,
(i) with the person to be served,
(ii) if the person is or appears to be mentally incapable in respect of an issue in the case, . . .
(iii) if the person is a child, . . .
(iv) if the person is a corporation, . . . or
(v) if the person is a children’s aid society, . . .
(b) leaving a copy with the person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;
(c) mailing a copy to the person, together with an acknowledgment of service in the form of a prepaid return postcard (Form 6), all in an envelope that is addressed to the person and has the sender’s return address (but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record); or
(d) leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address. O. Reg. 114/99, r. 6 (3).
SUBSTITUTED SERVICE
(15) The court may order that a document be served by substituted service, using a method chosen by the court, if the party making the motion,
(a) provides detailed evidence showing,
(i) what steps have been taken to locate the person to be served, and
(ii) if the person has been located, what steps have been taken to serve the document on that person; and
(b) shows that the method of service could reasonably be expected to bring the document to the person’s attention.
APPROVING IRREGULAR SERVICE
(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.
PROOF OF SERVICE
(19) Service of a document may be proved by,
(a) an acceptance or admission of service, written by the person to be served or the person’s lawyer;
(b) an affidavit of service (Form 6B);
(c) the return postcard mentioned in clause (3)(c); or
(d) the date stamp on a copy of the document served by deposit at a document exchange.
15As indicated, pursuant to rule 6(3), special service of an application on a person is carried out inter alia by either leaving a copy with the person to be served or his or her lawyer of record, mailing a copy to the person together with an acknowledgement of service to be returned to the Applicant, or leaving a copy at the person’s place of residence, with anyone who appears to be an adult person resident at the same address.
16The Family Law Rules do not deal specifically with the manner of service outside of Ontario. Rule 1(7) is as follows:
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.
17Pursuant to rule 17.05 of the Rules of Civil Procedure, in a contracting state the party 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.
18That subrule refers to the Convention the preamble of which is as follows:
The States signatory to the present Convention,
Desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time,
Desiring to improve the organization of mutual judicial assistance for that purpose by simplifying and expediting the procedure,
Have resolved to conclude a Convention to this effect . . .
19Article 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 of service in Ontario.
20However, if the State of destination does object, then service of a document in that State must be made through the Central Authority.
21The Peoples Republic of China, as a State of destination, does object. Canada, as a State of destination, does not object.
22In Khan Resources Inc. v. Atomredmetzoloto JSC2 the Court of Appeal held that where rule 17.05(3) applies, it is mandatory that it be followed.
23In Pitman v. Moi3, Justice D.K. Gray held that the Convention applies to family law proceedings in Ontario. At paragraph 19 of my earlier endorsement, I relied on that decision. Having had the benefit of written and oral submissions, I respectfully do not agree with his interpretation of Family Law Rule 1(7).4
24Rule 1(7) has several components:
the court must decide that the Family Law Rules do not cover a matter adequately.
if so, the court may give directions and the practice shall be decided
** By analogy to the Family Law Rules
** By reference to the Courts of Justice Act
** By reference to the Act governing the case and
** If the court considers it appropriate, by reference to the Rules of Civil Procedure.
25The first component is whether the Family Law Rules “do not cover a matter adequately”. It is the case that the Family Law Rules do not specifically address international service. However, Form 8: Application (General) is a regulated form and it does specifically contemplate service outside Canada. The Application contains the following on page 2:
IF YOU WANT TO OPPOSE ANY CLAIM IN THIS CASE, you or your lawyer must prepare an Answer (Form 10 – a blank copy should be attached), serve a copy on the applicant(s) and file a copy in the court office with an Affidavit of Service (Form 6B). 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.
26The fact that the Family Law Rules do not specifically address international service does not automatically mean that the Family Law Rules do not cover the matter “adequately”. Those rules clearly anticipate a variety of methods of service, although in the case of applications, limited to special service. The Form 8 makes it clear that respondents will be served outside Canada. Yet the Family Law Rules do not provide any manner of service except as in rule 6. In my view, the Family Law Rules do cover the question of service adequately.
27If I am wrong in that conclusion, I turn to the remaining components and I consider the directions that the court should give. The first is by analogy to the Family Law Rules. As indicated above, those rules provide for special service. By analogy, those rules should apply regardless of where the party is served.
28The second is by reference to the Courts of Justice Act. I cannot identify any section of the Courts of Justice Act which would assist in the giving of directions.
29The third is by reference to the Act governing the case. I do not have a copy of the First Application however, based on the contents of the Second Application, the Applicant relies on the Family Law Act, the Divorce Act, and the Children’s Law Reform Act. I cannot identify any section of any of those Acts which would assist in the giving of directions.
30The fourth is to determine whether it is “appropriate” to refer to the Rules of Civil Procedure. I begin by referring to the “Overview” contained in Ontario Family Law Practice5 which is as follows:
The Family Law Rules (FLR), originally O. Reg. 114/99 as amended by several regulations up to and including O. Reg. 142/14, are the work of the Family Rules Committee established by s. 67(1) of the CJA (Courts of Justice Act).
From November 15, 1999, the FLR applied to the Ontario Court of Justice and to the 17 counties, districts and municipalities served by the Family Court of the Superior Court of Justice. From July 1, 2004, coverage by the FLR was extended to all locations of the Superior Court of Justice, regardless of whether there was a Family Court operation in operation there, and the former Rules 69, 70 and 71 of the Rules of Civil Procedure were revoked in their entirety. . . .
The Family Rules Committee has organized the FLR into 43 separate groupings, each one dealing with a specific aspect of family law procedure. The table of contents, which forms part of the Rules, provides a handy way of accessing a particular rule. Particularly helpful is the numbering of the forms accompanying the rules, with each form given a number corresponding to the rule that creates the form.
The rules reflect the fact that in family cases a significant proportion of litigants appear before the court on their own without a lawyer or agent. Accordingly, an attempt has been made to make them more understandable to the layperson. Thus, an action is called a “case”, leave to do something is called “permission”, interim orders are called “temporary” orders, variation motions are called “motions to change” an order or agreement, and so forth.
31The Family Law Rules represented a deliberate departure from all “civil” proceedings having been previously governed by the Rules of Civil Procedure. The Family Law Rules govern those proceedings identified in rule 1(2) and 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 the 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. Furthermore, as indicated in rule 6(1) above, service under the Family Law Rules may be carried out in accordance with the rule “unless an Act, rule or order provides otherwise”. The Rules of Civil Procedure do not “provide otherwise” in family law cases. I conclude that it is not “appropriate” to refer to the Rules of Civil Procedure.
32On that basis, I disagree with my colleague and I find that rule 17.05 of the Rules of Civil Procedure do not apply to proceedings governed by the Family Law Rules.
(c) Exceptions to the application of rule 17.05 of the Rules of Civil Procedure
33Since counsel made alternative submissions, I will consider whether the interpretation by Gray J. in Pitman v Moi is correct and therefor rule 17.05 does apply.
34As counsel for the Applicant argues, even mandatory rules have exceptions. In Khan Resources, the court left open two exceptions to the exclusive nature of the Convention, namely:
where a party has pursued all possible remedies under the Convention and is still unable to effect service; and
where considerations of access to justice militate in favour of an exception to service under the Convention, in extreme circumstances.
35Since the earlier endorsement on the 14B motion, the evidence on behalf of the Applicant is that she has pursued all possible remedies under the Convention. All of the necessary documents, translated at considerable expense, have been sent to and are in the control of the Central Authority in China. Notwithstanding efforts to obtain the information, the Applicant and her counsel have no idea when the documents will be served on the Respondent and when proof of service will be returned to her counsel. Indeed, the Applicant and her counsel were unable to obtain confirmation that the Central Authority will act on the request for service or will refuse to do so. In accordance with the Convention, it could take six months before the Application is effectively served on the Respondent. The Convention contemplates that service by the Central Authority could take up to six months, but the fact is that the Applicant’s hands are tied in the meantime and accordingly she is unable to effect service.
36I turn to the four factors which inform the access to justice analysis.
37First, from February 2013 until and including the month of June 2015, the Respondent was paying an average of $30,000 CAD per month to the Applicant to support her and the children. In addition, he paid the fees for the private schools at which both children attend, currently approximately $5,000 per month per child. The Respondent also paid for vacations during the spring and summer breaks including camping fees, airfare and hotels. The total contributions are estimated at $40,000 CAD per month.
38The Respondent has made no payments since June, 2015. As a result, the mortgage and property taxes are in default; the hydro and gas bills are overdue; her car and property insurance are overdue; the school fees have not been paid, jeopardizing the continued attendance at the schools to which the children have been accustomed. The Applicant has described a drainage problem in the home that is causing water to run onto the neighbour’s property and which requires repairs estimated to cost almost $40,000. The Applicant has maximized her credit (including approximately $35,000 owing on credit cards) and exhausted friends and family in obtaining loans from them. She is not employed outside the home and has no means of earning income. In short, her financial circumstances are desperate.
39In addition, the Applicant owes considerable amounts in legal fees to her lawyers in the BVI and in Ontario. If she is unable to prosecute proceedings in the BVI and in Ontario, her circumstances and the financial circumstances of the children will become even more desperate.
40The Ontario Superior Court of Justice unquestionably has jurisdiction over the children who have resided in Ontario since about May 2012. Those children are entitled to the protection afforded pursuant to the Children’s Law Reform Act and the Family Law Act including child support.
41The second reason is that the Respondent is well aware of the Second Application. As indicated in the earlier endorsement, he signed a “2nd Affirmation of Wei Lin” dated September 17, 2015 filed in the BVI proceeding in which, at paragraphs 22-24, he acknowledged having reviewed the Second Application as the Applicant had filed it in her materials in the BVI proceeding.
42In the First Application, Aaron Franks of the firm of Epstein Cole LLP acted for the Respondent. In a letter dated July 14, 2015, Mr. Melamed asked Mr. Franks whether he would accept service of the originating process in the Second Application on behalf of the Respondent. No response was received.
43More recently, Mr. Franks and Mr. Melamed have exchanged the following correspondence. In a letter dated October 26, 2015, in which the RE line is Lin and Wang Our File No. 18334-0002, Mr. Franks wrote as follows:
We have a copy of Justice Kiteley’s endorsement regarding your ex-parte motion validating service on our former client, Mr. Lin.
If you plan to pursue a further motion, will you please provide us with a courtesy copy of your materials.
I understand that Ms Wang has now been served personally with the divorce claim from China (which service is effective for PRC purposes pursuant to the Hague Convention on service). I trust this will be in any further materials you put before the Court.
44Mr. Melamed responded in a letter dated October 27, 2015 as follows:
We wrote you in the summer and asked if you could accept service of a proceeding on behalf of Mr. Lin, having been his former counsel. We received no response to that correspondence. You have now written a letter with reference to Mr. Lin being your former client, and asking that as a courtesy, our office send materials to you should we seek a further Order of the Court regarding service in this matter.
If he is your former client, I see no reason to extend any such courtesy to Mr. Lin by providing further materials to you.
If, on the other hand, your former client intends to retain you with respect to any proceedings in this matter, we would ask whether your client would be prepared to accept service of the Application in this matter. We would be prepared to permit you to do so on a without prejudice basis, to defend the matter with respect to any jurisdictional issues. In other words, by accepting the pleadings, your client’s rights would be preserved to argue whatever jurisdictional matters he wishes to assert.
May I please have your immediate response to this correspondence?
45Mr. Frank’s reply dated October 29, 2015 (with the same RE line) is as follows:
I acknowledge receipt of your October 27th letter.
We do not have instructions to accept service. We merely asked for a courtesy copy in the event that your client decides to bring a further motion pursuant to Justice Kiteley’s endorsement. For clarity, Mr. Lin did not provide us with a copy of the endorsement. We actually came across it online quite by accident doing research on another matter.
If you see no reason to extend the courtesy, that is your and your client’s prerogative, and frankly, in keeping with your client’s previous conduct in the litigation.
In the meantime, I trust you will provide a copy of the letter to Justice Kiteley should you be inclined to try it again.
46Mr. Franks was present in court when I heard submissions on this motion. I do not know whether Mr. Melamed advised him of the date or whether he learned that it was on my list that day because he had other matters in court and he stayed to observe the submissions. From the contents of the letters and the attendance of Mr. Franks, I infer that Mr. Lin has retained Mr. Franks to maintain a watching brief on the Second Application. Not only is he aware of the Second Application, he has retained counsel to keep him informed.
47The third reason is that the Respondent has initiated divorce proceedings in the PRC. On October 20, 2015, a woman attended at the Applicant’s home and gave her an envelope that contained, inter alia a divorce proceeding, issued in the PRC Court by the Respondent. The document was not translated into English, is unsigned and bears no official seal, but is dated August 10, 2015. The Applicant consulted with a family lawyer in the PRC who advised her in or around October 27, 2015 that the document was improperly served as certain documents (including a court summons) were missing.
48As counsel for the Applicant pointed out, Canada is not an “objecting state” as defined by the Convention. As such it will be far less difficult for the Respondent to properly serve the Applicant with the PRC divorce proceedings than it is for her to effect service through the Contracting Authority of the PRC. I agree with counsel’s characterization that the Respondent is playing “cat and mouse” with the Applicant 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. It 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 protections afforded by Ontario laws and whose financial circumstances are dire.
49The fourth reason arises from the inherent jurisdiction of the court. As counsel for the Applicant observed, s. 11(2) of the Courts of Justice Act provides that the Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario. Counsel submitted that while the language of s. 17.05(3) is mandatory, as confirmed by the Court of Appeal in Khan Resources, it should not be interpreted as ousting the inherent jurisdiction of the court to ensure access to just as contemplated by the Supreme Court of Canada in Hryniak v. Mauldin6. Rather, the court should use its inherent jurisdiction in aid of the proper administration of justice and promote the primary objective of the Family Law Rules by authorizing substituted service or validating service.
50In Baxter Student Housing Ltd. et al. v. College Housing Co-operative Ltd. et al.,7 Dickson J. (as he then was) declined to allow a court appointed receiver’s charge for fees to take priority ahead of a first priority lien. The lien priority was statutory. The receiver’s priority for fees arose from his appointment as an officer of the court to the inherent jurisdiction to ensure that officers of the court are paid. In that context, Dickson J. wrote:
In my opinion the inherent jurisdiction of the Court of Queen’s Bench is not such as to empower a judge of that Court to make an order negating the unambiguous expression of the legislative will. The effect of the order made in this case was to alter the statutory priorities which a court simply cannot do. (emphasis added)
In the Court of Appeal Matas J.A. per curiam said:
In any event, I am of the opinion that sec. 11(1), supra, cannot be interpreted, under the circumstances before us, so as to frustrate the jurisdiction of Court of Queen’s Bench to appoint a receiver with effective power to carry out his mandate. (Montreal Trust Company et al. v. Churchill Forest Industries (Manitoba) Limited, 1971 CanLII 960 (MB CA), [1971] 4 W.W.R. 542 at p. 546 et seq.) In my view, the order appealed from is not in conflict with The Mechanics’ Liens Act, supra, and is in accordance with its intent.
Montreal Trust Company et al. v. Churchill Forest Industries (Manitoba) Limited may well be cited as a paradigm of the exercise of judicial discretion but Chief Justice Freedman, speaking for all his colleagues, was careful to state, p. 547:
Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case.
51In my view, the Legislature of Ontario has not “unambiguously expressed its will” that proceedings governed by the Family Law Rules must be governed by rule 17.05(3) of the Rules of Civil Procedure. There is no explicit language to that effect in rule 6 or rule 17. As demonstrated by Gray J. in Pitman v Moi, he undertook a detailed analysis of the Family Law Rules and the Rules of Civil Procedure before he arrived at his conclusion that rule 17.05(3) applied to family law matters. The decision in that case was based on interpretation of a statute and a regulation, neither of which specifically referred to family law matters. I have undertaken a similar analysis and come to a different conclusion. For that difference to occur, one cannot say that the Legislature has been “unambiguous”.
52Under those circumstances, the Superior Court retains its inherent jurisdiction in the matter of service involving proceedings governed by the Family Law Rules on parties outside of Canada.
53As indicated above, the Respondent has:
(a) financially abandoned his wife and children and left them in dire straits;
(b) known about the Second Application at least since September 17, 2015 and has retained counsel in Ontario to protect his jurisdictional interest which is to avoid being involved in litigation in this province;
(c) used the Convention to his advantage in his attempt to pursue proceedings for divorce in China and pre-empt the proceedings that his wife started in Ontario in June, 2015.
54Those are in the category of “extreme circumstances” identified by the Court of Appeal which militate in favour of finding that service through the Convention is not exclusive. Accordingly, I find that rule 17.05(3) of the Rules of Civil Procedure does not apply.
55Counsel for the Applicant made other submissions including whether there is a third exception8 to the mandatory application of rule 17.05 and whether the doctrine of parens patriae applies where the children reside in Ontario. In view of the analysis above, I need not address either of them.
(d) Substitutional Service or Validation of Service
56I turn to whether to make the order for substitutional service (which would require service again pursuant to the order) or to validate service that has taken place.
57Substituional service is intended where the location of the respondent is unknown. That is not the case here.
58As indicated above, the Respondent included in his September 17, 2015 “2nd Affirmation of Wei Lin” an acknowledgement that he had reviewed the Second Application. There is no need and no point in requiring the Applicant to send the material to the Respondent again. According to the notice contained in the Application to which reference is made above, the Respondent had 60 days to file an Answer. Rather than directing counsel for the Applicant to effect service again, I will direct that the time for responding to the Application starts from service of the order validating service which I expect will occur by no later than December 15, 2015.
ORDER TO GO AS FOLLOWS:
59The motion by the Applicant is granted and service of the Application as of September 17, 2015 is validated.
60Taking into consideration the order made November 26, 2015, the Respondent shall serve and file an Answer by February 15, 2016.
61If the Respondent serves and files an Answer by February 15, 2016, the Applicant shall serve and file a Form 13.1 Financial Statement.
62If the Applicant serves and files a form 13.1 Financial Statement, the Respondent shall serve and file a Form 13.1 Financial Statement within 30 days thereafter.
63Counsel for the Applicant shall have this order signed and entered and then serve the Respondent with a copy of the order in the following manner:
(a) by email to the Respondent at whatever email addresses the Applicant has;
(b) by email to Aaron Franks, Epstein Cole;
(c) by email to the Respondent’s counsel in the British Virgin Islands;
(d) by email to his counsel in Hong Kong.
64Henceforth, service on the Respondent may be effected either by regular service or special service as directed by rule 6 of the Family Law Rules.
65If the Respondent serves and files an Answer, counsel for the Applicant shall arrange a case conference.
66Counsel for the Applicant may take out this order without approval from the Respondent or from Aaron Franks.
67Costs of this motion are reserved to the earlier of (a) the judge hearing any motion that the Respondent brings to dispute the jurisdiction of this court and (b) the trial judge.
Kiteley J.
Date: December 14, 2015
Footnotes
- Wang v. Lin, 2015 ONSC 6351
- 2013 ONCA 189
- 2014 ONSC 2551
- Nor do I agree with the adoption of Pitman v. Moi by my colleague Chiappetta J. in Oesterlund v. Pursglove 2015 ONSC 5967
- By the Honourable David M. Steinberg, Justice Craig Perkins and Esther L. Lenkinski
- 2014 SCC 7, [2014] S.C.J. No. 7
- 1975 CanLII 164 (SCC), [1976] 2 SCR 475
- Gray v. SNC-Lavalin Group Inc., 2012 ONSC 3735, [2012] O.J. No. 2898 (Ont. S.C.J.) at paras. 43 and 46; Zaniewicz v. Zungui Haixi Corp., [2012] O.J. No. 4037 (Ont. S.C.J.) at para. 26