SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-15-406010

DATE: 2015-12-24

RE: NING ZUE, Applicant

and

MING GUO XUE, Respondent

BEFORE: F.L. Myers J.

COUNSEL: Ning Zue, self-represented

READ: December 24, 2015

ENDORSEMENT

[1] This matter came before me in writing. The respondent lives in a country that is a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (known as the “Hague Convention on Service”). Canada is also a signatory to the Hague Convention on Service.

[2] The Hague Convention on Service requires that documents that need to be served on parties in civil court proceedings must be served in particular ways. In general, documents to be served under the Hague Convention on Service must be sent by a proper person here to a designated Central Authority in the foreign country. The Central Authority will then serve the documents on the respondent and will provide a certificate to prove that they have served the documents. Different countries have different rules however. Some require documents to be translated into their local language. Some allow service by mail as an alternative to using the Central Authority. The United States allows service on terms very similar to our own. Others have stricter terms. To determine the rules applicable to a particular foreign country one must consult the Hague Convention website:

https://www.hcch.net/en/instruments/conventions/status-table/?cid=17

[3] In a case called Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, the Court of Appeal for Ontario has held that when the Hague Convention on Service applies to a legal proceeding, the Convention’s terms must be followed and the court may not dispense with service or allow service that is not in conformity with the Convention’s terms.

[4] The proceeding before me was not served on the respondent in a manner that complies with the Hague Convention on Service.

[5] There is a legal issue as to whether the Hague Convention on Service applies to cases brought under the Family Law Rules, O.Reg 114/99. There are three decisions of this court that have come to differing conclusions.

[6] In Pitman v. Mol, 2014 ONSC 2551, Gray J. held that service of court documents in family law proceedings must be made under the Hague Convention on Service. Justice Chiappetta agreed and reached the same decision in Oesterlund v Pursglove, 2015 ONSC 5967.

[7] However, in Wang v. Lin 2015 ONSC 7814, Justice Kiteley came to a different conclusion. She held that the Hague Convention on Service does not apply to cases that are governed by the Family Law Rules. In addition, Justice Kiteley noted in para. 34 of her decision that in the Khan case, the Court of Appeal left open a possibility that even if the Hague Convention on Service applies, there might be exceptions:

● 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

[8] Justice Kiteley held that both of those exceptions do indeed exist and that they applied on the facts before her.

[9] The decision of Justice Kiteley in the Wang case is being appealed.

[10] Many cases with the same issue exist in every court in Ontario. Over the past few months, for internal administrative reasons, I have received nearly every motion with a foreign respondent that has been filed in Family Court of the Superior Court of Justice in Toronto. Of approximately 240 motions filed from mid-October to mid-December, 2015, I have determined that the Hague Convention on Service would apply to approximately 60 of the cases if it applies at all. I have reserved my decision in those cases pending a clarification of the law. This is one of the motions in which I reserved decision.

[11] I am not inclined to weigh-in on the legal debate by choosing sides as among competing decisions of this court at this time. However, I am cognizant that even if leave to appeal is granted in Wang and even if the appeal is heard very quickly, it may still take several months before an appeal court decides the question of whether the Hague Convention on Service applies in family law cases in Ontario.

[12] One of the reasons that I am not prepared to decide the issue myself as yet is that the cases that I have before me all have very little evidence concerning service. This is understandable because the moving parties were likely unaware that there was even an issue under the Hague Convention on Service. For the same reason, there is no evidence before me on any efforts by the moving party to comply with the Hague Convention on Service and on any access to justice issues that may arise on the facts of the particular case.

[13] In Wang, Kiteley J. called for an oral hearing on further evidence before making her decision.

[14] Having considered the matter further, it seems to me that I should do something similar. First, it may be that in a number of the cases, service under the Hague Convention on Service may be accomplished relatively simply by the moving parties. If that happens, then there is no need to decide the question of whether the Convention is mandatory. Second, under Article 15 of the Hague Convention on Service and the terms of Canada’s adoption of the Convention, where service is attempted under the Convention but service is not effected within six months, the court can proceed to hear the matter. While the parties are waiting, the court is expressly authorized to make orders for any provisional or protective measure in case of urgency. It may be that in this and other cases, parties are prepared to wait and see rather than incurring cost and effort otherwise. Many of the divorce requests that I have been holding show that the parties have been separated for a number of years before moving for divorce. There may be no urgency at all. Finally, if a party believes that he or she has grounds to claim that an exception to the Hague Convention on Service applies, then they ought to have the opportunity to deliver further evidence and legal argument so that a proper oral hearing can be held.

[15] For these reasons, I adjourn this motion on the following terms:

i. the moving party may schedule the motion for hearing before me on filing a certificate of service under Article 6 of the Hague Convention on Service; or

ii. the moving party may schedule the motion for hearing before me upon filing evidence that Article 15 of the Hague Convention on Service has been satisfied or that there is urgency while waiting for the six month period referred to in Article 15 to elapse; or

iii. The moving party may schedule the motion for hearing before me upon filing evidence and legal argument to show that the Hague Convention on Service does not apply or that they are entitled to an exception from it.

[16] Parties should note that to prove an exception on the basis that they have pursued all possible remedies under the Hague Convention on Service (if such an exception exists in light of the express terms of Article 15), the Court of Appeal has indicated at para. 59 of the Khan case that evidence of attempts to pursue a remedy through diplomatic channels under Article 14 of the Convention is helpful and may be necessary.

[17] The motion is therefore adjourned on the foregoing terms.

F.L. Myers J.

Date: December 24, 2015