CITATION: Bienenstock v. Viscardi, 2017 ONSC 7753

COURT FILE NO.: FS-17-21785

DATE: 20171229

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robin Anne Bienenstock, Applicant

AND:

Riccardo Giannelli Viscardi, Respondent

BEFORE: Madam Justice Kristjanson.

COUNSEL: Shannon Beddoe, for the Applicant

Respondent not appearing

HEARD: December 28, 2017

ENDORSEMENT

[1] This is an urgent motion brought by the applicant mother, Ms Bienenstock, for custody of and access issues relating to two children, 12-year-old SJG and 11-year-old OLG, who reside with their mother in Canada. The respondent father, Mr. Viscardi, lives in Italy.

[2] The issues are:

(1) Was service on Mr. Viscardi validly effected in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters?

(2) Has Article 15 of the Hague Convention on Service Abroad been complied with, such that this court can issue default judgment?

(3) Is the applicant entitled to the relief sought?

Factual Background

[3] The parties married in 2004, and spent their early married life in Milan although the mother commuted to London for work. The parties agreed to move to London, and in September 2009, the mother and children moved to London. The respondent never moved to London as agreed, but remained in Italy and visited the children on some weekends and holidays. The parties separated in 2011, and the divorce was finalized in Italy in 2014.

[4] In the spring of 2015 the mother applied to the UK Family Court for Leave to Remove to relocate with the children, primarily so she could be nearer to her friends and family and for work opportunities. In the course of the Leave to Remove proceedings, the respondent and the children were interviewed by an independent officer of the Children and Family Court Advisory and Support Service, a child protection agency in the UK. The officer found among other things that there was a “pressing need” for the respondent to “work on improving the quality of his relationship” with the children, “so that they feel valued and prioritized by him and he [could] learn how to relate to them in a better manner.”

[5] In October, 2015, the respondent father voluntarily agreed to a Child Arrangements Order (“CAO”) approved by the UK Family Court whereby the applicant was permitted to move with the children to Canada, and the respondent would have access to the children on a specified access schedule designed to repair his relationship with them incrementally over time. The parties also agreed to co-operate in obtaining a Mirror Order in a Canadian court, costs to be borne equally, although neither party has done so.

[6] The respondent also voluntarily agreed to pay his outstanding arrears, although a Judgment Summons was been issued against him in the UK relating to support arrears, and a 2014 warrant for the respondent’s arrest remains outstanding in the UK due to the respondent being found in contempt of court. Procedural enforcement of the Judgment Summons relating to support arrears is proceeding in Italy.

[7] The applicant moved to Canada with the children in January 2016. Throughout 2016, the respondent failed to exercise any of the incremental access visits agreed to in the CAO. Specifically, he:

• did not come to Canada in February 2016 as agreed to in the CAO,

• did not respond to the itinerary proposed by the applicant with regard to the children travelling to Italy over Easter as agreed to in the CAO,

• did not come to Canada in June 2016 as agreed to in the CAO

• did not respond to the applicant’s request for his August 2016 holiday plans as required by the CAO and as a result, did not make any plans to see the children in Italy in the summer of 2016 as agreed to in the CAO, and

• did not come to Canada in February 2017 as agreed to in the CAO.

[8] In addition, the respondent failed to respond to additional access invitations offered by the applicant, including to spend time with the children in June 2016 in the UK, in Toronto in the summer, autumn and Christmas 2016, and in London in March and June, 2017. In 2017 the applicant wrote regarding Easter 2017, where she advised that access could not proceed as contemplated in the CAO due to the children’s school calendar, and she invited him to spend time with the children on alternate dates in March 2017 in the UK, and April 2017 in Toronto. The respondent did not acknowledge or reply to the correspondence about Easter, and did not exercise the proposed alternative access.

[9] The respondent has chosen not to see his children for 19 months. He has chosen not to exercise his access rights as agreed to in the CAO. He has further chosen to reject additional invitations from the applicant to visit his children at other dates and times.

[10] He has caused distress to his children by his telephone and text messages. He sent threatening messages and e-mails to the applicant, including e-mails where he expressed a wish that the applicant was dead. He has ignored communications about the children, and yelled over the phone at the children. There has been a breakdown in the respondent’s relationship with the children.

[11] Because of the failure by the father to exercise access as agreed, the applicant’s concern about the breakdown in his relationship with the children, and fear and distress expressed by the children about spending time with their father, the applicant planned the 2017 summer holiday in Canada rather than Italy as contemplated by the CAO. The applicant offered to pay for the respondent to come to Toronto to spend time with the children at any time during the summer of 2017. In July 2017, upon learning that the children would not be travelling to Italy in August, the respondent contacted the applicant by e-mail to advise her that the Italian police were investigating her for child abduction. The timing coincided with the hearing of the applicant’s enforcement of the UK Judgment Summons to have support arrears paid to her, which was heard in Italy.

[12] The respondent’s failure to take any steps to obtain the Mirror Order in Canada (for which he was to pay half the costs) after the applicant moved to Toronto, his failure to take any steps to enforce the terms of the UK CAO here, and his failure to exercise his right of access from February 2016 onwards, suggests that the respondent’s decision to contact the Italian police in July, 2017 was a response to the support enforcement process or a desire to punish the applicant rather than a response to her decision to change the terms of the agreement.

[13] The respondent refuses to speak to the applicant over the telephone. The independent officer’s report in the UK found:

[W]hat is clear is that the parties have been unable to establish an effective way to communicate together about the children’s needs. This need becomes more pressing given the children’s age whereby plans are likely to require short-notice adjustments to accommodate their social needs. It was evident speaking with the children that this was a particular area of anxiety for them and they both expressed concern that their father would become angry if they had activities or requests that he was unlikely to agree with. It was evident that Mr. Gianelli Viscardi still holds anger towards Ms Bienenstock which is likely to impede his ability to work with her cooperatively and the children are exposed and emotionally harmed by this.

[14] This is a high conflict relationship, with the parties unable to co-parent due to the respondent’s animosity to the mother.

[15] All custodial decision-making since the mother and children moved to Canada in January 2016 has been left to the applicant, who is the de facto custodial parent. She is seeking sole custody to manage decisions about the children’s well-being on her own. The applicant believes that a relationship with the respondent is in the children’s best interests and is prepared to continue to encourage and facilitate contact and access with the respondent but believes the access schedule should follow a phased approach, similar to that originally contemplated in the CAO, so that the children can rebuild a healthy and trusting relationship with the respondent. This would include a requirement that the respondent cease menacing and harassing behaviour towards the applicant and the children.

Service on the Respondent

[16] The affidavit of service filed with the materials indicates that on October 11, 2017, a private process server served the respondent with the application materials after identifying him by a photograph. The evidence of the process server is in the past Mr. Viscardi would not answer the door or apartment intercom system, so the process server waited outside his apartment building. The process server called him by name and touched him with the paperwork and tried to put it into Mr. Viscardi’s hands. Mr. Viscardi refused to take the paperwork and instead drove off down the road on his scooter until he reached the end of the road, at which point he stopped and watched the process server. The process server asked the concierge to place the paperwork into Mr. Viscardi’s mailbox which she said she would do immediately.

[17] After questions were raised with respect to the validity of personal service in Italy under the Hague Convention on Service Abroad, the applicant filed a further affidavit of a legal assistant attaching an email exchange between solicitors in Canada and Mr. George Brooks of European Process – Professional International Process Servers. The e-mail of Mr. Brooks states that:

The service provided by us is Hague Compliant as it falls into the normal service or custom of Italy (i.e., Private Process Servers.)

Article 5(b) of the Hague Convention permits service of process in the manner prescribed in the laws of the country where service is to be effected.

We have no stipulation that Process Serving is legal in Italy as there would realistically only be evidence if it was NOT legal.

The only place in Europe where that written evidence exists is in Germany, where it definitely is illegal.

[18] The affidavit sets out an e-mail from Canadian counsel inquiring whether the private process server used in Italy falls within the definition of “competent person of the State of destination,” within the meaning of Article 10(c) of the Hague Convention on Service Abroad, discussed below. Mr. Brooks confirmed that a private process server is a competent person of the State of destination for the purposes of service in Italy.

Urgency: Respondent Commences Criminal Process in Italy

[19] This motion was brought on an urgent basis, because on December 22, 2017, the applicant was served with an Italian Court document from the Prosecutor’s Office, advising her that she was being prosecuted in Italy in relation to allegations that she “abducted” the children. The date of the document is November 8, 2017, less than a month after the respondent was served with the Application in this case.

Issue #1: Service Under the Hague Convention on Service Abroad

[20] The first issue is whether personal service on Mr. Viscardi, a resident of Italy, was effective service in accordance with the Hague Convention on Service Abroad. Italy is a signatory to the Convention. Rule 17.05(3) of the Rules of Civil Procedure governs service abroad in family law cases: Wang v. Lin, 2016 ONSC 3967 (Div. Ct.) paras. 54-65. Rule 17.05(3) provides that an originating process to be served outside Ontario in a contracting state shall be served either through the Central Authority, or “in a manner that is permitted by the Convention and that would be permitted by these rules if the document were served in Ontario.”

[21] Article 10(c) of the Convention provides:

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

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.

[22] The official website of the Hague Conference on Private International Law, www.hcch.net, to which counsel directed me, indicates that Italy does not object to Article 10. Personal service of originating processes in Ontario is allowed under the Rules of Civil Procedure and the Family Law Rules.

[23] As stated by Gray, J in Pitman v. Mol, 2014 ONSC 2551 at para. 57, with respect to service in England, which on the evidence before me is equally applicable to Italy:

[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); …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. (internal citations omitted)

[24] On the evidence before me, private process servers may serve originating documents in Italy by way of personal service, and they are “other competent persons of the State of destination” pursuant to Article 10(c) of the Convention. Rule 17.05(3)(b) of the Rules of Civil Procedure permits service in a manner that is permitted by Article 10 of the Convention, and personal service by private process servers is permitted for service of an Application in Ontario. As a result, I find that Mr. Viscardi was served in accordance with the Hague Convention on Service Abroad.

Issue #2: May Default Judgment Issue Given the Hague Convention on Service Abroad?

[25] The second issue is whether default judgment may now issue. The Form 8 Application with which Mr. Viscardi was served clearly states that the respondent has 60 days, if the application is served outside of Canada or the United States, to serve and file an answer and “if you do not, the case will go ahead without you and the Court may make an Order and enforce it against you.” Mr. Viscardi was served with the Application on October 11, more than sixty days ago. Thus, he is taken to have known that after December 11, Ms Bienenstock was entitled to obtain relief in Ontario, subject to the requirements in Articles 6 and 15 of the Hague Convention on Service Abroad.

[26] The question is whether, in the absence of a certificate issued pursuant to Article 6 of the Convention, default judgment may issue before a six month waiting period contemplated by Article 15(2) of the Hague Convention on Service Abroad.

[27] When a person is served by the Central Authority, then a certificate in a form annexed to the Convention is completed by the Central Authority pursuant to Article 6 of the Convention; this constitutes proof of service which may be used in court. An example of such a certificate is set out in Form 17A under the Rules of Civil Procedure. However, parties using Article 10 service, rather than Central Authority service, as is the case here, do not have a certificate signed by the Central Authority.

[28] Article 15 of the Hague Convention on Service Abroad deals with default judgment. It provides:

(1) Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that

a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

(2) 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 of 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.

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

[29] Italy has made no declaration of applicability regarding Article 15(2). Does the wording of Article 15(2) contemplate that Article 15(1) only applies where there is an Article 6 certificate of delivery or service? I do not find this to be the case. I find Article 15(1) to be freestanding: in states where Article 10 service is permitted, then default judgment may proceed if the service complies with Article 15(1).

[30] I find that Article 15(1) is satisfied here, in that the application was actually delivered to the defendant or to his residence as provided for in Article 10(c) of the Hague Convention on Service Abroad, and the service or the delivery was effected in sufficient time to enable the defendant to defend (sixty days). Therefore, the applicant may proceed to obtain default judgment.

Issuse #3: Is the Applicant Entitled to the Relief Sought?

[31] The children are habitually resident in Ontario pursuant to s. 22(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. They moved to Ontario with their mother in January 2016 pursuant to an order of the UK Family Court to which the father consented. The parents are divorced and the children reside with the mother and attend school in Ontario.

[32] The applicant should have sole custody of the children pursuant to s. 21 of the Children’s Law Reform Act, as it is in the best interests of the children. The mother has had de facto sole custody since moving to Canada, and has functioned as the primary responsible parent since separation in 2011. The children have resided with the mother since 2009, first in London and then in Ontario. The evidence is that the children have a good relationship with their mother, and their father has chosen not to see the children for 19 months. At no time since the children moved to Canada has Mr. Viscardi taken steps either to ensure that the Mirror Order was obtained or to enforce his rights to access, when it is clear that the children are here and the UK Consent Order clearly contemplated that Ontario courts would have jurisdiction to deal with future access difficulties. There is evidence that he has sent distressing texts and phone calls to the children, and has not kept up support payments. The children have expressed distress about seeing their father. This is a high conflict relationship, much of it caused by the respondent. The complaint to the Italian police about “abduction” by the mother appears suspect, given the father’s failure to take any steps to avail himself of a plethora of access opportunities, and his failure to obtain or enforce a Mirror Order in the Canadian courts as contemplated by the Consent UK Order, the CAO. On the evidence before me, sole custody to the mother/applicant.

[33] Access is always a critical issue for parents and children. The test for determining access is what order is in the best interests of the child. In making this determination, I have considered the “best interest” factors set out in subsection 24(2) of the Children’s Law Reform Act, as well as all other relevant considerations.

[34] The UK Court Order granted significant access to the father. He has failed to exercise his access rights. Nonetheless, the applicant is supportive of the father’s access rights as consistent with the best interests of the children to build a relationship with the father. Generally, children should have maximum contact with both parents if it is consistent with the child’s best interests: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

[35] Given that he has not seen the children in 19 months, a graduated approach as reflected in the UK Court Order is appropriate. As such, order to go as signed by me today providing access to the father, in Ontario for the first 18 months, as agreed to by the parties or as determined by this Court to be in the children’s best interests.

Madam Justice Kristjanson

Date: December 29, 2017