Court File and Parties
COURT FILE NO: FS-16-20791
DATE: 2018-05-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ayse Coskun, Applicant
AND: Yucel Ozeke, Respondent
BEFORE: S.R. Goodman, J.
COUNSEL: V. Craig, for the Applicant
HEARD: December 21st, 2017; March 20th, 2018 and March 23rd, 2018
ENDORSEMENT
[1] On April 13th, 2016, Ayse Coskun started this application, in which she sought custody of the parties’ child, Derin Ozeke (“Derin”), born on May 29th, 2014; access terms relating to future access by the respondent, Yucel Ozeke; and terms relating to the renewal of Derin’s passport and also her right to travel outside of Canada with Derin.
[2] In the application, Ms. Coskun asserted that:
(a) she is a dual Canadian-Turkish citizen;
(b) the respondent is a Turkish citizen who at all times resided in Turkey;
(c) she and Mr. Ozeke met in Turkey, where she had been residing temporarily and became pregnant [In her Application, she also asserted that she had been residing in Ontario since 2014.];
(d) she returned to Canada on a permanent basis on February 16th, 2014;
(e) Derin was born in Canada, is a Canadian Citizen and had always habitually resided in Toronto;
(f) she and Derin were in Turkey between July 12th, 2014 and October 25th, 2014, so that Mr. Ozeke could meet and visit with Derin;
(g) she and Derin visited Turkey again between December 20th, 2014 and April 7th, 2015, and stayed with Mr. Ozeke;
(h) upon her return to Canada, a permanent residence was purchased in Toronto where she and Derin could reside;
(i) she and Derin had visited Turkey again briefly, so that Mr. Ozeke could celebrate Derin’s first birthday with her and Derin;
(j) she and Derin moved into her new condominium on July 26th, 2015, and had resided there since then;
(k) Mr. Ozeke had visited Derin in Canada in July 2015 and in January 2016; and
(l) the parties’ relationship had ended.
[3] Ms. Coskun sought custody of Derin on the basis that she had been solely responsible for his care and upbringing and provided a secure and loving home for him. Further, according to her, Mr. Ozeke had no knowledge of Derin’s day-to-day life. She asserted that she and Mr. Ozeke did not communicate well and, given the distance between them, decisions regarding Derin’s upbringing had to be made by her. Thus, it was in Derin’s best interests that she be granted sole custody of him.
[4] In this Endorsement, where a document is stated to be “in Turkish”, the document is written in a language other than English or French and it can reasonably be inferred that the document is written in the Turkish language.
[5] On October 26th, 2016, Ms. Coskun filed a motion, pursuant to rule 14 of the Family Law Rules (a “Form 14B motion”), seeking final orders on an uncontested basis. She relied on an affidavit of Sabri Baris Boyra, a lawyer residing in Istanbul, Turkey, in which he/she deposed that on May 2nd, 2016, he/she had served Mr. Ozeke by way of special service at the address shown as Mr. Ozeke’s address for service on the Application, by leaving a copy of the application, Ms. Coskun’s Form 35.1 Affidavit respecting custody and access and the Respondent’s Mandatory Information Program (“MIP”) Notice, with him. [While Sabri Baris’s affidavit appears to have been signed and notarized, the affidavit is not dated and documents attached to the affidavit appear to be in the Turkish language and were not accompanied by English or French translations.]
[6] On December 9th, 2016, Paisley, J. denied the relief sought on the uncontested trial, as follows:
“(1) Hague issue – Service in Turkey
(2) Draft Order “on Consent” – no consent filed.”
[7] Subsequently, Ms. Coskun changed counsel.
[8] On February 24th, 2017, Ms. Coskun amended her Application, to seek “sole” custody of Derin; an order that Mr. Ozeke have access to Derin at her sole discretion and authorizing her to travel with Derin outside of “Ontario and Canada”. She deleted various references to the history of visits to Turkey after Derin’s birth and the purchase of the residence. She replaced the references with statements that she and Derin visited Turkey regularly between Derin’s birth and first birthday; she bought a condominium in April 2015, in which she and Derin began to live on June 26th, 2015; and Mr. Ozeke had come to visit Derin in July 2015, in January 2016 (for a week) and in May 2016 (for four days). Although the application has a notation on it that it was amended on February 24th, 2017, Ms. Coskun and her counsel did not sign it until April 26th, 2017.
[9] On December 6th, 2017, Ms. Coskun filed a further Form 14B motion, in which she sought an order that Mr. Ozeke be “noted in default”; his Form 35.1 Affidavit be dispensed with; and the matter be set for “an uncontested trial” relying on her written materials. It is unclear what occurred in relation to this motion. The Continuing Record suggests that on December 18th, 2017, Ms. Coskun brought the motion now before this court, which was originally first returnable on December 21st, 2017, to be heard orally on a regular motions day. On this motion, she seeks the same relief as that sought on the last Form 14B motion. On the initial return of this motion, this court expressed concern as to whether the applicant had proved service in accordance with the Hague Service Convention (the “HSC”). The main concern related to the fact that a judge in Turkey had signed a Certificate in purported compliance with Article 6 of the HSC, but the details to be included in an Article 6 Certificate, as referred to in Article 6, were missing. [See also Form 17B of the Ontario Rules of Civil Procedure (“RCP”), referred to in subrule 15.05(4) of the RCP.] In and among the documents attached to Ms. Coskun’s Amended Application was another Article 6 “Certificate”, which included specific alleged service particulars in this matter, but had not been signed. It did not appear to this court that the unsigned Certificate had always been part of the first bundle of service-related documents at the back of the Amended Application, in that the other documents in the bunch appeared to have been stapled numerous times, but the completed and unsigned certificate had only been stapled once. The second set of documents is a purported translation of a card/notice/envelope, but only one-half of it had been translated. The motion was adjourned, to permit the applicant an opportunity to consider the concerns this court had expressed about the proof of service of the Amended Application under the HSC. This court had no desire to have the applicant take further steps to re-serve Mr. Ozeke under the HSC, if not necessary. The applicant had provided this court with a copy of the “Details” that specifically apply in cases of service in Turkey under the HSC. The information is published on the HSC website at (www.hcch.net). According to the website, service of documents in Turkey takes place in three months’ time.]
[10] The motion came back on before this court about three months later (March 20th, 2018), at which time the court reviewed further material that the applicant had filed and heard further submissions. The matter was then adjourned to March 23rd, 2018 and subsequently reserved.
[11] The following evidence is located in the Continuing Record:
At Tab 1: Affidavit of personal service of the Application, Form 35.1 Affidavit and MIP Notice, in both Turkish and English;
At Tab 28: Bundle of documents stapled together and in the following order: (1) the Certificate, in Turkish and English, dated September 7th, 2017, which appears to have been either originally signed or stamped by on or on behalf of Tugrul Uzun, a judge (“Judge 137355 and also referred to as “(Rapporteur) Judge); (2) a Request for Service Abroad of Judicial or Extrajudicial Documents (“Request for Service Abroad”), in Turkish and English; the completed but unsigned “Certificate”, in Turkish and English; (3) a document, titled “Warning”, in Turkish and English; and a “Summary of the Documents to be Served”, in Turkish and English.
By way of the first above-mentioned Certificate, dated September 7th, 2017, then, a judge certified, in purported conformity with Article 6 of the HSC, that “the document” had been served on August 2nd, 2017, but he did not specify the place at which service had been effected; the method (of service authorized by Article 5 of the HSC), which had been used; the identity or description of the person with whom the documents referred to in the request had been left; and that person’s relationship to the addressee (Mr. Ozeke). A deletion made on the face of the Certificate makes it clear that the judge was certifying that the document(s) had been served. Reference is also made to “Annexes”, although there is no reference to any specific document(s) being annexed to the Certificate. The Certificate also refers to “Documents returned” as “Documents”. It is possible that “Annexes” refers to the “Documents” referred to below that word in the form, but not itemized, which were returned with the signed Certificate. The Certificate also contains the following wording further below in the signed form, “in appropriate cases, documents establishing the service”, but there is no reference to documents at all, general or itemized. The Certificate indicates that the Certificate was “done at” Ankara, on September 7th, 2017.
Although the unsigned/unstamped Certificate (the one that had been completed as to the date of service (August 2nd, 2017), the address of service (it being the address for service shown for Mr. Ozeke both on the original and amended applications, and the method of service (it purportedly having been effected under Article 5(a) of the HSC) and the reference on the Certificate to the Certificate being completed (“done”) at Ankara on September 7th, 2017, the other documents in the bundle appear to have been stapled on more than one occasion. The completed, but unsigned, Certificate has only been stapled once. The Request for Service Abroad (part of the first bundle) refers to Mr. Ozeke and his address for service as the one shown on the original and amended applications in this case. It lists two documents to be served only – the Amended Application and a Certified translation of the Amended [sic] Application into Turkish - but the portions of the Request for Service Abroad, which read “Done at” (referring to the place), “the __ (referring to the date), and “Signature and/or stamp”, were not completed.
Also filed at Tab 28 are: a Notarial Certificate, dated November 20th, 2017, in which Patricia N. Gordon, a Notary Public in Ontario, states that she had compared a document purporting to be “the Affidavit of Certified Translation dated November 6th, 2017” with the copy attached to her Notarial Certificate”, and certified its accuracy; and a copy of an Affidavit Certified [sic] Translation, sworn on November 6th, 2017, in which a multilingual co-ordinator at Canada International Translation Service deposed that documents attached to the affidavit are true translations of the documents. The attached documents appear to be a translation of the right side only of a card/notice/envelope. A Sample Number (25); File Number (2017/13937), indication that the card/notice/envelope is/was “REGISTERED”; the abbreviation, “No:”, followed by a reference to
[12] In support of the Form 14B motion, filed on December 6th, 2017, with a Hearing Date of December 12th, 2017, (and which ultimately came before this court, I believe), Anna Ferreira, a legal assistant employed in Ms. Coskun’s current counsel’s law firm, deposed (in an affidavit, sworn on December 5th, 2017 and filed on December 6th, 2017) that on June 13th, 2017, the Amended Application had been sent to the Republic of Turkey, Ministry of Justice, for service on Mr. Ozeke by way of Request for Service Abroad of Judicial or Extrajudicial documents, pursuant to the HSC.
[13] It appears that on September 8th, 2017, Tugrul Uzun (Rapporteur Judge) sent a letter to Ms. Coskun’s address for service shown on the Amended Application, referring to “Number: 42569666-4-5-66652-2017-30853/93604” and “Subject: Yucel Ozeke”, informing the person to whom the Notice was sent that “the certificate regarding the request for the service of documents under the HSC “is transmitted as enclosure”. The letter indicated as follows at the bottom of the letter: “Annex: Documents”. Ms. Ferreira deposed that the signed letter from the Judge, Tugral [sic] Uzin [sic], dated August 9th, 2017 [sic], attached as Exhibit “B” to Ms. Ferreira’s affidavit, confirmed that Mr. Ozeke had been served with the Amended Application. [Based on the way that the date set out on the right side of the card is shown – that is, day/month/year - to which this court refers above (that is, 21/07/2017), for example, it appears that the letter was dated September 8th, 2017 (not August 9th, 2017).] In that letter from the Republic of Turkey, Ministry of Justice, General Directorate of International Law and Foreign Relations, dated September 8th, 2017, which appears to have been signed by Tugrul Uzun (Rapporteur Judge), Tugrul Uzun confirmed that the “certificate regarding the request for the service of documents under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents of 15 November 1965” was being “transmitted as enclosure”. The letter refers to documents being annexed. Exhibit “B” contains copies of the Request for Service Abroad (which refers to the Amended Application and the certified translation of the Amended Application into Turkish), the Certificate, dated September 7th, 2017, which had been signed by or stamped with the signature of Judge 137355 (who appears to be Tugrul Uzun, having regard to the similarity of the signature on this document to that found in the letter attached to Ms. Ferreira’s affidavit), but did not include the method, the place of service or the person to whom the document was delivered; a blank Certificate form [emphasis added by me]; and, in addition, the “Warning” to Mr. Ozeke and Summary of the Document to be Served, which are also found at Tab 28 of the Continuing Record. If Ms. Ferreira’s affidavit is accurate, then the completed but unsigned Certificate did not form part of the documents returned to Ms. Coskun by Tugrul Uzun on September 8th, 2017.
[14] As well, Ms. Ferreira attached as Exhibit “C” to her affidavit what she deposed to be the translated document (translated from Turkish into English), which showed proof of “the registered mail to [Mr. Ozeke] dated August 2, 2017”. The Exhibit is comprised of the card/notice/envelope and partial translation of it into English, which are also located at Tab 28 of the Continuing Record. Unfortunately, again, the left side of the card/notice/envelope, stamped August 2nd, 2017, with what appeared to this court to contain Mr. Ozeke’s name in someone’s handwriting at Item 6 and initials or a signature at the bottom of the left-hand side of the card, had not been translated into English.
[15] In the material that Ms. Coskun filed for the motion, returnable on December 21st, 2017, she again filed the affidavit of Ms. Ferreira, sworn on December 5th, 2017. Thus, the applicant effectively confirmed through her counsel that the letter of Tugrul Uzun, dated September 8th, 2017, did not contain the completed but unsigned version of the Certificate that is found in the documents filed as proof of service of the Amended Application at Tab 28.
[16] After this court adjourned the motion, to permit counsel to look into the situation, the applicant filed further evidence before the March 20th, 2018 attendance. In an affidavit, sworn on March 15th, 2018, Katherine Luong (an employee in Ms. Craig’s office) deposed that she had been advised by Ms. Craig (counsel for Ms. Coskun on the motion) that Ms. Craig had been advised by Ms. Ferreira that Ms. Coskun had provided the law firm with the documents that she had received back from the Central Authority in Turkey after the Amended Application had been served. Ms. Coskun had provided the documents to Ms. Ferreira. According to Ms. Luong’s affidavit, the documents that Ms. Coskun provided are attached as Exhibit “A” to Ms. Luong’s affidavit. She deposed that those documents are Tugrul Uzun’s letter, “dated August 9/17 [sic], one signed Certificate, signed by Justice Tugrul Uzun; and one unsigned Certificate, as well as a Warning and Statement of the Documents to be Served, and a postal document [to which I have referred as a card/notice/envelope and to which Hamza Arslan refers as a “notice paper” below], confirming delivery to the Respondent”. The only Certificate attached to Ms. Luong’s affidavit (at Exhibit “A”) is a blank Certificate [again, emphasis added by me]. No other Certificate (signed or unsigned) forms part of Exhibit “A” to Ms. Luong's affidavit. While it is possible that it was due to an inadvertent error that Tugrul Uzun’s Certificate, dated at Ankara on September 7th, 2017 was not attached at Exhibit A” to Ms. Luong’s affidavit, the fact remains that the only Certificate at Exhibit “A” is a blank Certificate form. The completed but unsigned or stamped version of the Certificate, included at Tab 28 of the Continuing Record in support of proof of service, was not attached to either of the two affidavits sworn by Ms. Ferreira on December 5th, 2017 and by Ms. Luong on March 15th, 2018.
[17] According to Ms. Luong, Ms. Ferreira had attached “only a partial translation for [the] postal document” to her affidavit. Ms. Luong deposed that she had attached “the entire postal document”, which had been translated, and asserted that it indicates that the “registered mail” had been left with an employee/officer/secretary of Mr. Ozeke on August 2nd, 2017. The “Affidavit Certified [sic] Translation, sworn on November 15th, 2017, provides a translation of the left-hand portion of the card/notice/envelope in addition to the translation of the right side of the card/notice/envelope and the card/notice/envelope in its Turkish form (both previously relied upon by Ms. Ferreira). The top of the card/notice/envelope indicates that it emanates from the Republic of Turkey, Public Prosecutor of Istanbul, and Ministry Communications Agency. On the left side of the card, at the top, the card/notice/envelope is titled, “NOTICE PAPER”. It then states, “The notice document,” after which a number of options follow. The translation indicates that none of paragraphs 1 – 5, 7 and 8 was filled in. As for paragraph 6, the translation provides as follows:
“6- As the notification of …………………… was declined, to …… Yucel Ozala………….”
On a review of paragraph 6, it seemed entirely possible to me that the handwritten name is “Yucel Ozeke” and not “Yucel Ozala”. As well, the translation does not clearly translate the card/notice/envelope in that the references to “Muslum KARAHAN” and “Registry 231213” do not seem to be related necessarily to the location for a “fingerprint”, but possibly the place for the name of the notification officer. Based on my review of paragraph 6 of the translation of the card/notice/envelope (“notice paper”) and the similarity of the signature and handwritten initials on the card to the words “Yucel Ozeke” and the initials “YO”, one could well have concluded that either Mr. Ozeke was given the documents and declined to take them and/or that he declined to take the documents and, thus, a person named “Yucel Ozala” (an employee/officer/secretary) was given the material. From a comparison of the translation with the card/notice/envelope in Turkish, it also appeared that “as the workplace owner addressee of the notification paper could not be found / was not available” [emphasis added by me], the notification paper was notified to the employee/officer/secretary by his/her signature at the address by Muslum Karahan on August 2nd, 2017. A hand-drawn line appears to run from the space for the date on which the person signed to the date stamp. A hand-drawn circle can be seen on the stamp that is shown as a slant on the left-hand side of the notice/card/envelope. It may well be that it indicates that the card/notice/envelope was left with an employee, as it appears to be located where the Turkish word for “employee” is located. I note that Ms. Coskun had not provided any evidence to suggest that the signature and/or handwriting on the Notice Paper” (again, referred to by me as the card/notice/envelope) was that of Mr. Ozeke. Thus, the “Notice Paper” (that is, the card/notice/envelope) was not clear at all as to whether Mr. Ozeke was, in fact, personally served, declined to be served, could not be found or had not been available. [However, as I have concluded below, it would have been a rather striking coincidence, if Mr. Ozeke had an employee/officer/secretary named “Yucel Ozala”.]
[18] The documents at Tab 28 include the original Certificate that was signed by or stamped on behalf of Tugrul Uzun on September 7th, 2017, at Ankara. That Certificate refers to the documents being returned. In that Certificate, the judge certified that the “document” had been served on August 2nd, 2017.
[19] The completed, but unsigned, version of the Certificate was filed with the Court on November 21st, 2017 as part of the proof of service of the Amended Application on Mr. Ozeke. The details inserted in the unsigned version of the Certificate appear to have been input using the same print font as was used in preparing the documents that were sent to Turkey for service purposes on June 13th, 2017. In an email of January 8th, 2018, sent to the Turkish government (referred to in the following paragraph), counsel indicated that the document that contained service information but had not been signed by the judge had been received by Ms. Coskun from the Turkish Central Authority. Yet, neither the affidavit of Ms. Ferreira nor that of Ms. Luong suggest that Ms. Coskun provided the firm with the completed and unsigned version of the Certificate. In her affidavit, Ms. Luong deposed that she is unsure as to why there is a discrepancy between the documents filed as proof of service and the documents attached to her and Ms. Ferreira’s affidavits.
[20] On January 5th, 2018, Ms. Craig contacted the General Directorate of International Law and Foreign Relations (the “General Directorate”) in Turkey, it being the body that acts as the Turkish Central Authority. She asked that the documents that they had initially sent to Ms. Coskun be re-sent, in order to resolve the confusion as to what specific documents the Turkish Central Authority had sent to her. One translator advised her to set out the problem in writing and request the original documents by e-mail to the General Directorate. Ms. Craig e-mailed the General Directorate on January 8th, 2018, asking whether it would be possible to have the Certificate corrected or, alternatively, to have the Certificates that were originally sent to Ms. Coskun re-sent.
[21] A second translator, Mediha Isitman, with whom Ms. Craig spoke, provided Ms. Craig with her personal e-mail address and offered to contact the judge who had signed the Certificate. The second translator responded to Ms. Craig on January 9th, 2018, confirming that she had spoken with Judge Tugrul Uzun. The translator advised her that a new judge was now dealing with the matter but Judge Uzun would reach out to the new judge.
[22] On January 9th, 2018, Ms. Craig received an e-mail from Judge Recep Akbayir, enclosing what appeared to be re-signed copies of both the original letter and Certificate, signed by Tugrul Uzun, and advising that the attachments would also be re-sent through the Canadian Central Authority. The copies were sent to Ms. Coskun by the General Directorate by mail. Unfortunately, the new Certificate did not include the information regarding the method of service, place of service and name of the addressee. Ms. Craig followed up by e-mail with Ms. Isitman on January 15th, 2018, asking whether the new judge had reviewed the matter. The translator replied by e-mail on the same day and confirmed that she would follow up with Judge Akbayir, the judge who had e-mailed the letter and Certificate to Ms. Craig. Ms. Craig had not realized that Judge Akbayir was the judge dealing with the matter until she heard back from the second translator. On January 16th, 2018, Ms. Isitman advised Ms. Craig that she had spoken to Judge Akbayir on the phone. He had apparently advised her that the Certificates had been corrected and that photographs of the certificates had been sent to Ms. Craig. The translator advised Ms. Craig that she could contact the judge, should she have any further questions.
[23] Ms. Craig contacted Ms. Isitman on January 16th, 2018, stating that she did not realize that the Certificate had been corrected, as it was still missing information. Ms. Craig advised Ms. Isitman that she would follow up with Judge Akbayir. Ms. Craig e-mailed Judge Akbayir on January 16th, 2018, advising him of her concern that the Certificate was missing the information referred to in Article 6 of the HSC. Not having heard from him, Ms. Craig sent a follow-up e-mail on January 26th, 2018. On January 29th, 2018, Judge Akbayir e-mailed Ms. Craig, informing her as follows:
“I would like to inform you about the procedure. If the Canada Court does not accept the certificate, they will request about the matter. Otherwise we cannot help you about that issue.”
[24] Ms. Craig responded to Judge Recep Akbayir via e-mail on February 5th, 2018 and re-iterated her concerns about the missing information in the Certificate. She asked whether it was common practice in Turkey that Certificates provided after service under the HSC not contain all of the information regarding service and indicated that any information as to why the Certificate was missing information would be very helpful. She did not receive a response.
[25] Ms. Craig also attempted to directly reach out to the Permanent Bureau of the Hague Conference on Private International Law (HCCH) (the “HCCH”), to inquire as to whether it is possible to perfect service under the HSC when a Certificate has been completed incorrectly. The HCCH website confirms that the Permanent Bureau is not able to respond to queries from private persons or legal practitioners concerning the operation of the various Hague Conventions, including cases dealing with service of documents abroad.
[26] Copies of the e-mail and other communications between Ms. Craig and both Ms. Isitman and Judge Akbayir, which are referred to above, are attached as Exhibits to Ms. Luong’s affidavit, sworn on March 15th, 2018.
[27] Ms. Craig appeared before the court on March 20th, 2018. She advised this court that Ms. Coskun had recently retained a lawyer in Turkey to provide a legal opinion as to whether Mr. Ozeke had been properly served with the Amended Application in accordance with Turkish law. The lawyer whom she retained, namely, Hamza Arslan, provided an affidavit, to address this issue. The affidavit is attached to Ms. Luong’s affidavit, as Exhibit “Q”. Ms. Craig has confirmed that when she received Mr. Arslan’s affidavit, she realized that the exhibits to it had neither been sworn nor commissioned. She e-mailed Mr. Arslan on March 11th, 2018 and asked that he swear his affidavit again, along with the exhibits to it. Ms. Craig advises that Mr. Arslan replied on March 13th, 2018, stating that notarizing an appendix to an affidavit is not possible in Turkey. He attached photographs of notarized printouts of some of the website pages that had been included as Exhibits to his affidavit. The e-mail and attachments to it are located at Exhibit “S” to Ms. Luong’s March 15th, 2018 affidavit.
[28] According to Mr. Arslan, he was retained by Ms. Coskun to provide a legal opinion on whether “the application” was properly served on Mr. Ozeke in accordance with domestic Turkish law. He referred to the statute and regulation that provide for service of legal documents in Turkey: the Notification Law and the Regulation Regarding the Implementation of the Notification Law (the “Regulation”). He quoted Article17 of the statute and Articles 26 and 44 of the Regulation only. Article 26 of the Regulation and Article 17 of the Notification Law (which Article apparently addresses “Performing profession or art at a certain place or at house”) relate to service on persons other than the respondent personally.
[29] Article 44 of the Regulation refers to service of documents submitted to the Ministry of Foreign Affairs by the embassy of a foreign country or by the consulate through the Governor’s office, for notice to Turkish or foreign people resident in Turkey. The provision provides that:
“the documents will be reviewed by the Ministry of Foreign Affairs for conformity to “agreement provisions and rules of reciprocity and if approved, the notice paper, sample no (5) in Annex-1 [sic] will be sent inside an envelope to the relevant Ministry, depending on the content of the notification, and the relevant Ministry, by observing the provisions of this Regulation, will take action on the notice, through the competent authority in the residential place of the correspondent”.
(2) After the notification process is completed, the notice will be returned through the same paths.
The other two, quoted Articles, again, deal with service by serving others (such as permanent workers/employees, people residing in the same residence or servants) in certain circumstances and the party performs his/her profession or art at a particular place or at his/her residence.
[30] According to Mr. Arslan, service is officially made by the Turkish courts and is carried out by the Post and Telegraph Incorporated Company (the “PTT”), a state monopoly. Thus, it is the sole official state institution for “delivery of notices”. He deposed that “international notices” have to be carried out by the PTT. Information about all of the “Notifications [thus, service of documents] “sent through the PTT” is publicly available on a database on the PTT’s website. Anyone wishing to check the records or status of a Notification simply has to enter the barcode for the specific Notification in the search bar of the database. In support of this statement, he attached a copy of a form with a security code on it, titled “Registered Mail Tracking”, as “Exhibit” C to his affidavit. Mr. Arslan reviewed the PTT database on the website, as well as the “notice paper” completed by the postal worker who delivered “the Application” (Mr. Arslan’s term) to Mr. Ozeke. According to Mr. Arslan, the records of the Notification to Mr. Ozeke have the barcode number 4002271805113. The file number with the Republic of Turkey Istanbul Chief Public Prosecutor’s Office, Communication Bureau of the Ministry, is 2017/13937. He deposed that he found out from the PTT’s website that the Notification with the barcode having the just-mentioned barcode number “was completed in person” on August 2nd, 2017. According to him, the database (a copy of which is attached as “Exhibit” D to his affidavit) confirms that Mr. Ozeke was personally served with the Application. In the part of the form that refers to “Delivery Clarification”, the document attached as “Exhibit” D indicates that the “item” was delivered to the “addressee” in person on “02/08/17”, the recipient being “Y**** O****”.
[31] Mr. Arslan also reviewed the “notice paper” (again, the card/notice/envelope), which he deposed had been completed by the postal worker who had delivered the application to Mr. Ozeke, bearing the same barcode and file numbers as those that relate to the information he had found on the website database. The “notice paper”, attached as “Exhibit” E to his affidavit. The “notice paper” is the document to which I have referred as a “notice/card/envelope” above in this Endorsement. Mr. Arslan deposes that Ms. Coskun had advised him that she had received the “notice paper” by mail from the Central Authority. According to Mr. Arslan, it “appear[ed] that the Post Officer incorrectly completed this notice paper and stated that Mr. Ozeke was not available and the Notification was made to an employee/officer/secretary on his behalf.” He added that he believed that the database inquiry results on the PTT website showed the accurate information and that Mr. Ozeke received the application personally from the postal worker. Mr. Arslan provided his opinion that Mr. Ozeke had been notified and received “the Application” in accordance with Articles 26 and 44 of the Regulation, as well as Article 17 of the Notification Law. [However, he also deposed that the database inquiry results confirm that “the Application” was delivered in person by the postman “and Mr. Ozeke’s signature was received”. Thus, in his opinion, Mr. Ozeke had been properly served with “the Application”, in accordance with Turkish notification Law.
Ms. Coskun’s Position:
[32] In essence, by her factum, Ms. Coskun’s position is that documents submitted to the Turkish Central Authority (the Ministry of Justice of the Republic of Turkey) for service may be accompanied by a copy of the document, translated into Turkish. Documents accompanied by an annexed translated copy can be served against the addressee’s will. The addressee may refuse to accept service of documents prepared in another language. (She relies on the “Hague Conference on Private International Law, Turkey – Central Authority’s Practical Information, 14 December, 2016, online: https://www.hcch.net/en/states/authorities/details3/?aid=277.)
[33] In this case, Ms. Coskun had submitted a Request for Service Abroad of Judicial or Extrajudicial documents to the Turkish Central Authority, pursuant to the HSC and Rule 17.05(3) of the RCP. The request was submitted, with copies of the Amended Application, translated into Turkish. The Turkish Central Authority provided her with a Certificate that stated that service had been effected on Mr. Ozeke, in accordance with Article 6 of the HSC. Thus, Ms. Coskun had complied with the applicable service rules and the HSC.
[34] Having proceeded appropriately and keeping in mind the primary objective of the Family Law Rules of Ontario (the “FLRs”) [enabling the court to deal with cases justly, which includes ensuring that the process is fair to all parties and saving expense and time] when making an order, the court may give directions and impose orders as appropriate: subrule 1(6) of the FLRs. Far more than 60 days had passed since Mr. Ozeke had been served and he had not served or filed an Answer: subrule 10(2) of the FLRs. Pursuant to subrule 10(5), then, he is not entitled to any further notice of steps in the case, other than being served with orders under subrule 25(13); is not entitled to participate in the case in any way; the court may deal with the case in his absence and a date may be set for an uncontested trial, which would be the most just and efficient way to deal with these proceedings.
Analysis:
[35] The Ontario Rules of Civil Procedure (the “RCP”, again) have ratified and incorporated the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (the “HSC”, again) into Ontario’s civil procedural service rules respecting service on parties in foreign jurisdiction. Further, it has been held that the HSC applies in the family law context where service outside Ontario is to be effected: Wang v. Lin, 2016 ONSC 3967 (Div. Ct.); Pitman v. Mol, 2014 ONSC 2551, Oesterlund v. Pursglove, 2015 ONSC 5968, and Stevenson v. Sykes, 2015 ONSC 7789.
[36] Turkey is a party to the HSC. Further, Turkey has objected to the application of Article 10 of the HSC. Thus, service in Turkey must be effected through the Turkish Central Authority under the HSC.
[37] Practical information about Turkey’s methods of service in the context of matters requiring service in Turkey of documents under the terms of the HSC is found on the HSC’s website, referred to in paragraph [32] above.
[38] Ms. Coskun had taken steps to serve Mr. Ozeke in Turkey in May, 2016, via a private process server, but unfortunately, in doing so, she had not complied with the service rules under the HSC. [I note that at that time, she had attempted to serve him with not only her application but also her Form 35.1 Affidavit in Support of Claim for Custody or Access, dated April 11th, 2016, among other documents.] From the Continuing Record in this matter, it appears that she filed a Form 14 B motion for relief by way of an uncontested trial in late October 2016. Quite rightly, Paisley, J., in part, rejected the motion for judgment, which he considered on December 9th, 2016. On or before April 26th, 2017, she had formally amended her Application. It appears to have been in May or early June 2017 that she proceeded with steps to serve Mr. Ozeke in accordance with the HSC. The Turkish Central Authority returned documents to her at some point after September 9th, 2017. She first filed a Form 14B motion on December 6th, 2017, seeking the relief claimed on this motion, but decided to bring the motion before the court on a regular motions day, which occurred on December 21st, 2018. As the facts set out above indicate, I had concerns about proof of service of the Amended Application and adjourned the motion for a short period (to January 18th, 2018) to provide counsel with an opportunity to consider my concerns, which are referred to in a handwritten Endorsement that I provided on that day. The matter was not brought back before the court (me or any other judge) until March 20th, 2018. At that time, Ms. Coskun relied on additional evidence. While I hoped to be able to consider the matter that week, my schedule did not permit it and, thus, on March 23rd, 2018, I reserved my decision on the motion.
[39] Having had an opportunity to carefully consider the evidence on this motion (which included the additional evidence that the applicant filed on March 16th, 2018), counsel’s submissions, the applicant’s factum, the relevant law (including not only the terms of the HSC, the service-related rules and statutory provisions of Turkey, to the limited extent to which they were provided to the court in Mr. Arslan’s affidavit, but also the provisions of the RCP and the FLRs, as well as the “Practical Handbook on the Operation of the Service Convention” (published by The Hague Conference on Private International Law Permanent Bureau, Churchillplein 6b, 2517 JW The Hague, The Netherlands, and available for purchase on the HSC website referred to in Ms. Coskun’s factum) (“Hague Conference’s Practical Handbook”), I have ultimately concluded that I am satisfied that on August 2nd, 2017, Mr. Ozeke was served personally with the Amending Application, but I am not satisfied that he was properly served for purposes of this case and the relief claimed on this motion, given that he was not served with Ms. Coskun’s Form 35.1 Affidavit in Support of Custody and Access, dated April 11th, 2016 (or any Form 35.1 Affidavit). I will elaborate on my concern below in this Endorsement.
[40] Turkey has objected to the methods of service referred to in Article 10 of the HSC. Thus, the only manner of service of the Amended Application permitted was service through Turkey’s Central Authority. I accept Mr. Arslan’s evidence respecting the manner in which the Central Authority proceeds to serve parties under the HSC. Service is to be carried out by the PTT (postal authorities).
[41] Article 5 of the HSC provides as follows:
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.
If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.
[42] Again, practical information respecting Turkey’s manner of serving documents under Article 5 of the HSC is found on the Hague Conference’s website at: https://www.hcch.net/en/states/authorities/details3/?aid=277.) Respecting methods of service in Turkey, the site states as follows:
If the documents and attachments which are requested for service under the article 5/1 of the Convention are prepared in Turkish or that a translation in Turkish be attached with the original documents, the Chief Public Prosecutor’s Office perform the service via post offices in accordance with our domestic law. In such a case, documents may also be served against the addressee’s will, so this method is generally demanded.
On the other hand [sic] the documents transmitted without its translation are served in accordance with Article 5/2 of the Convention. In such a case the addressee may refuse to accept the documents by reason of not having the translated documents, so in this form of service, the performance of the service is up to the Addressee’s will.
In these methods of service, the Chief Public Prosecutor’s Office perform the service via post offices.
[43] In addressing translation requirements (referring to “Art. 5(3)”), the site states as follows:
As stated before, the addressee may refuse to accept the documents prepared in another language different from the requested states.
[44] It is not on the basis of the Certificate that Tugrul Uzun signed on September 7th, 2017 and/or the other documents that were apparently sent/returned to Ms. Coskun after he was purported properly served with the Amending Application that I have concluded that Mr. Ozeke had been served with the Amending Application, personally.
[45] Ms. Coskun had initially relied completely on the signed Certificate (and, possibly, the completed, but unsigned, Certificate) in support of her position that service had been effected in accordance with the HSC’s terms. (See her factum, filed.) I note, however, that Article 6’s requirements are mandatory. They state as follows:
The Central Authority of the State or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present convention. The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.
The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.
The certificate shall be forwarded directly to the applicant.
[46] The rationale for and purposes of the provisions of the HSC are referred to in both Khan Resources Inc. v. Atomredmetzoloto, JSC, 2013 ONCA 189 and Wang v. Lin, supra. Where a Certificate is returned to an applicant and it contains all of the information that Article 6 requires to be included in it and has been signed by the Central Authority or a judicial authority, an applicant should in the ordinary course have no difficulty satisfying the court in his/her case that the document(s) was/were properly served through the HSC process. However, in my opinion, where the Article has not been complied with to the letter, a court may or may not find that service was properly effected.
[47] The author(s) of the Hague Conference’s Practical Handbook state that the case law suggests that the practice under Article 6 is not overly formalistic regarding the requirement that the certificate contain certain items of specific information relating to the execution of the request. The Handbook refers to case law from other jurisdictions where, for instance, a court held that Article 6 does not require the use of the Model Form itself and it was sufficient for the Certificate to contain the essential elements of the Model Form to meet the requirements of Article 6. The Court justified its decision by stating that the aim of the Certificate is not to protect the interests of the person to be served. (at para. 213). On the other hand, the author indicates that:
“[w]hile there is no doubt that the lack of excessive formalism is to be welcomed, one must also emphasise [sic] that because of the widespread use of the [HSC], many courts tend to view the Certificate as an authoritative approval which confirms that service has been properly effected in conformity with the law of the required State. In other words, use of the model Certificate annexed to the Convention is highly encouraged. [Case citation omitted by me]
214 Practice shows that Central Authorities do not always provide a Certificate and instead return the entire case file to the forwarding authorities…Even where the person [who executed the service] is very diligent in performing service and in specifying details of the notification, and also the information contained in the local affidavit of service is quite useful for the plaintiff, the problem remains that courts in the requesting State expect a Hague Certificate in proper form as an authoritative approval.
215 A United States court held that an omission in the Certificate – in the case in point, the competent authority had failed to specify the form of service performed – did not result in the nullity of service, given the good faith of the forwarding authority and the fact that the defendants were actually given notice of the document to be served. [Case citation omitted by me]
[48] The author(s) also refer(s) to a decision of a Swiss court in which the court held that even if the Certificate did not contain information regarding the name and position of the person who received the document, the service would be considered valid if the State of destination has stated that the document had been served. However, the author also went on to say that the importance of including such information in the Certificate cannot be overstated. (At para.147) (Case citation omitted by me)
[49] The HSC provides two particular provisions, which protect the interests of those who will be served under the HSC – Articles 15 and 16. Most particularly, for purposes of addressing this motion, the first paragraph of Article 15 is set out below:
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 has been 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.
[50] Where Article 6 has not been strictly complied with in circumstances such as the ones before this court, the court in the jurisdiction where the substantive matter is proceeding is certainly not bound to find that service on the respondent was effected because a statement was made in the Certificate that “in conformity with Article 6”, the “document has been served on 02/08/2017)”. There may be circumstances where Annexes and/or Documents, as well as, “in appropriate cases, documents establishing the service”, are annexed/attached to a signed model form or other “certificate”, and the court may be reasonably able to determine whether the party was served in accordance with Article 15 from the attachments.
[51] Ms. Coskun has not personally provided any information to the court regarding her knowledge of the specific documents that were returned to her by the Central Authority in Turkey. Again, I had looked at the documents that were filed as proof of service of the Amended Application very carefully. I did not consider the information contained in the completed, but unsigned, version of the Certificate, which forms part of the documents that were filed by the applicant at Tab 28 of the Continuing Record to be evidence of proof of service of the Amended Application on Mr. Ozeke. The origin of that document is simply too uncertain to have considered it. It appeared to have at one time been stapled to the Request for Service Abroad, Warning and Summary of the Document to be Completed forms included at Tab 28. However, the staple holes connecting those documents do not line up with any of the staple holes on the original version of the Certificate, which Tugrul Uzun, signed on September 7th, 2018. Thus, again, it simply cannot be determined on the record before this court that when he signed the Certificate on September 7th, 2018, Tugrul Uzun (Rapporteur Judge) was relying on a second certificate, which he had completed or, for that matter, someone else had completed, but had not been signed. One can only infer from both Ms. Ferreira’s and Ms. Luong’s affidavits that, among the documents that Ms. Coskun provided to Ms. Ferreira when she received documents from the Turkish Central Authority, the additional certificate she received was simply a blank version of the Certificate form.
[52] There may well be a perfectly understandable explanation as to how and when the completed, but unsigned, version of the Certificate came into existence. The documents at Tab 28 were filed in the Continuing Record on November 21st, 2017. Ms. Coskun signed a Notice of Change in Representation on January 19th, 2017. Unfortunately, Ms. Coskun’s counsel at the time that the documents at Tab 28 were filed passed away at some point over the last few months. Thus, the circumstances surrounding the origin of the completed, but unsigned, Certificate and its inclusion with the other documents filed as proof of service of the Amended Application and translation of the Amended Application into Turkish may not be capable of being cleared up. The only evidence about it is that of Ms. Luong, who had not been involved in the delivery of the documents to the firm by Ms. Coskun and expressed, quite simply and, in effect, that she was unsure why there was a discrepancy between the documents filed in the Continuing Record at Tab 28 respecting service of the Amended Application on Mr. Ozeke and the documents that Ms. Ferreira had deposed that Ms. Coskun had provided to her after receiving them from the Central Authority in Turkey. It was simply impossible to reasonably conclude that Tugrul Uzun (the judge who signed the Certificate certifying that the documents (that is, the Amended Application and translation of the Amended Application into Turkish) had either prepared or relied upon the completed, but unsigned, version of the Certificate in certifying that service had been effected on August 2nd, 2017. [To be clear, in indicating that it is impossible on the evidence to determine what specific documents Ms. Coskun received from the Turkish Central Authority with the signed Certificate, I have not questioned the honesty or integrity of any person who provided evidence in connection with this motion or who may have been involved with the filing of documents on this motion.]
[53] In addition to the above, just-mentioned issue, the evidence in this matter was highly problematic for additional reasons. Further confusion arose from the translation of the card/notice/envelope (“notice paper”) that the postal carrier had apparently completed on August 2nd, 2017. At one point, only one-half the document had been translated into English. Further, the translation does not, in my view, accurately translate some of the wording in relation to the location at which the wording is found on the card/notice/envelope. Most importantly, however, is that the translation of the notice/card/envelope (including the wording in the standard form (items 1 to 8, inclusive), the stamp placed on the form by the postal worker, I believe, and the handwritten notations on the notice/form/envelope (a handwritten name, which the translator believed to be “Yucel Ozala”, and initials, which I tended to believe are “YO”) does not permit a judge to determine, on the basis of the notice/card/envelope alone, whether or how Mr. Ozeke was served with documents in this matter. Further, the stamp suggests that Mr. Ozeke could not be found or was not available and that an employee/officer/secretary was served (with a circle having been drawn over the word “employee” in the stamp, possibly, and a line drawn down to the stamped date of August 2nd, 2017. More confusing, still, is that the handwritten name appears to be placed at item 6 of the form, which purportedly states that “as the notification of [empty space] was declined, to Yucel Ozala”. Further, item 1 of the form would have been the appropriate part of the form to complete if the addressee were served at the address and item 8 of the form would have been the appropriate part of the form to complete, if the addressee had declined to be served.
[54] Further, the position in Ms. Luong’s evidence, filed on March 16th, 2017 in support of this motion, is contradictory in that Ms. Luong deposed that the documents had been provided to an employee or servant of Mr. Ozeke on August 2nd, 2017. In the affidavit of Mr. Arslan, attached as an Exhibit to Ms. Luong’s affidavit, he referred to Article 26 of the Regulation and Article 17 of the Notification Law, both of which provisions deal with delivery of documents to persons other than the party to the case in circumstances where the party is, for example, not available. Yet, it was his belief that Mr. Ozeke had been served personally, based on the details set out in PTT’s computer-generated service history, shown as a Chart on the PTT website’s database, which he provided). The entry for August 2nd, 2017 indicated that the document(s) had been delivered to the addressee in person. It is not clear why Mr. Arslan found the computer entry worthier of belief than the information in the card/notice/envelope (“notice paper”), which the postal worker had seemingly stamped on that day. His status as a lawyer does not improve his ability to determine what the facts are.
[55] Subrule 14(18) of the FLRs provides that as much as possible, an affidavit for use on a motion shall contain only information within the personal knowledge of the person signing the affidavit. According to subrule 14(19), an affidavit may also contain information that the person learned from someone else, but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information is true (and also in another stated circumstance, which is not relevant to this motion). The “piggy-backing” of Mr. Arslan’s affidavit to that of Ms. Luong makes the information contained in the computer-generated service history no less than triple hearsay. On the other hand, given that the Certificate was not properly completed and the need for Ms. Coskun to provide further evidence, and the issues relating to the card/notice/envelope, justice requires that she be able to refer to the information available on the PTT website’s database. I would certainly not have determined that Mr. Ozeke had been served personally either solely on the basis of the information contained in the computer-generated service history or even together with Tugrul Uzun’s certifying that Mr. Ozeke had been served. However, on all of the evidence, including the information that someone had input into the service history and my review of the card/notice/envelope and, most particularly, the handwritten initials at the bottom of it, I am satisfied that Mr. Ozeke was present on August 2nd, 2017 when the postal worker attended at the address for service provided by Ms. Coskun and that it is his initials (“YO”), which were written on the card. It would simply be too coincidental that the name written on the card at item 6 is Yucel Ozala and the name of the person to be served is Yucel Ozeke. The translation is clearly in error. An “e” is easily discerned at the end of the handwritten surname; the surname at item 6 of the card/notice/envelope does not end in an “a”.
[56] The documents that were sent to Turkey to serve were translated into Turkish. I do not know whether by initially (signing, perhaps) the bottom of the card, Mr. Ozeke was acknowledging service, accepting service or declining service. However, based on the information set out in paragraph [42] above, it matters not. According to Turkish domestic service laws, he was deemed to have been served with the documents that he received.
[57] This court is of the tentative view, however, that notwithstanding the finding I have made in the paragraph above, Mr. Ozeke was not properly served for purposes of this case and motion. I say “tentative view” because this is not an issue that had occurred to this court during the attendances that took place with counsel on the motion. The focus had been on the question of whether Mr. Ozeke had been served with documents, and not whether he had been served with the requisite documents. Having found that he was personally served, I turned my attention to the merits of the motion, at which time, I realized that Mr. Ozeke had not been served with the Form 35.1 Affidavit in Support of Custody or Access Claim on August 2nd, 2017.
[58] Subrule 8(1) provides that, to start a case, a person must file an application.
[59] subrule 8(4) requires each party to a case to attend the Mandatory Information Program (“MIP”) no later than 45 days after the case is started. Subrule 8(5) requires the applicant to serve notice of the respondent’s appointment for the MIP step with the application. The respondent cannot take any step in the case before his or her certificate of attendance is filed, except that a respondent may serve and file an answer and a party may make an appointment for a case conference.
[60] Subrule 8 (3.1) provides as follows:
An application containing a claim for custody of or access to a child shall be accompanied by the applicable documents referred to in rule 35.1 of the Family Law Rules.
[61] Subrule 35.1(6) further emphasizes the importance and relevance to the court and a responding party of the documents to be served and filed pursuant to rule 35.1 by providing as follows:
(6) If these rules require a document to be accompanied by the applicable documents referred to in this rule, the clerk shall not accept the document for filing without,
(a) an affidavit in support of claim for custody or access; and
(b) the documents referred to in subrules (3) and (5), if applicable.
[62] It is my tentative opinion that there is a clear difference between the requirement that notice of the respondent’s MIP session be provided with the application and the rule requiring that the documents referred to in subrule 35.1 accompany the application, if the applicant is claiming custody of or access to a child. In the case of notice of an MIP session, subrule 8(4) of the FLRs permits the court, on motion, to order that any or all of subrules 8(4) to 8(7) do not apply to the party because of urgency or hardship or for some other reason in the interest of justice. Such permission is not provided to the court in the context of rule 35.1.
[63] Nor is such permission provided in connection with the requirements respecting the serving and filing of financial statements. Subrule 13(1) of the FLRs provides that, if an application, answer or motion contains a claim for support, a property claim, or a claim for exclusive possession of the matrimonial home and its contents, the party making the claim shall serve and file either a financial statement in Form 13 or 13.1 (depending on the particular claims being made) with the document that contains the claim. Further, subrule 13(10) provides that the clerk shall not accept a document for filing without a financial statement, if the rules require the document to be filed with a financial statement.
[64] The reason for the strict requirements regarding the serving and filing of the documents required to be provided under rules 35.1 rule 13 is obvious. The rules ensure that a party who is served with a claim(s) has sufficient information at the time he/she is served such that he/she can make an informed decision as to whether he/she should or wishes to defend against the claims being made. Highly relevant facts that may not be within the knowledge of the responding party and which may have a serious impact on the party’s decision as to whether or to what extent he/she may respond to the applicant’s case may well form part of the material that the claimant provides, pursuant to the claimant’s mandatory obligation to provide the documents with his/her initiating pleading. With respect to the matter of custody and access claims, evidence provided pursuant to rule 35.1 respecting an applicant’s new partner’s prior criminal history and/or prior involvement in child protection proceedings, for example, is extremely essential information that a responding party should have before determining what his/her response to the claims being made in the case will be. Similarly, in the rule 13 context, sworn evidence respecting the applicant’s position respecting relevant issues such as his/her need, ability to pay and net family property is highly relevant to the decision a responding party may make as to what, if any, response he/she will provide to the claim(s) made against him/her.
[65] Again, I have concluded, “tentatively” (because I have not had the benefit of any submissions on behalf of Ms. Coskun), that “Service” of the Form 35.1 Affidavit, dated April 11th, 2016, upon Mr. Ozeke in 2016 does not constitute service upon him of the document, given that it was not effected in compliance with the terms of the HSC.
[66] Ms. Coskun wishes to proceed with her custody- and access-related claims on an uncontested basis. This court agrees with Ms. Coskun that the primary objective of these rules is to enable the court to deal with cases justly. The court is required to apply the FLRs to promote the primary objective and the parties and their counsel are also required to do so. This case involves not only considerations that relate to Ms. Coskun, but also to Mr. Ozeke. Most importantly, the subject of the case is the parties’ child. No evidence was provided to this court about the level of contact Mr. Ozeke has had or attempted to have to Derin since approximately May 2016. The claims in this case involve the best interests of the parties’ child. No evidence has been adduced to suggest that the determination of the case must be made urgently or that any urgent issues cannot be addressed by way of motion.
[67] The need to serve Mr. Ozeke in Turkey is not a matter of fault. That is where he lives. No evidence has been provided on this motion to suggest that Mr. Ozeke has done anything in connection with the service issue, which would give rise to a costs order. The costs of the case would be more appropriately dealt with at trial.
[68] For clarity, Ms. Coskun also seeks an order dispensing with Mr. Ozeke’s obligation to comply with FLR 35.1. Although this issue may now be premature, given the outstanding service issue, in my opinion, if a party does not defend/respond to a case, then he/she is not obliged to comply with FLR 35.1. Mr. Ozeke would only be obliged to file a Form 35.1 Affidavit, if he filed/files an answer.
[69] Last, Ms. Coskun has sought an order noting Mr. Ozeke in default. The Family Law Rules do not contain any provisions for the noting of parties in default. Thus, no order is necessary for a party to be able to proceed with his/her case in the circumstances where the other party was served in accordance with the applicable service rules and did not respond in the requisite time.
[70] In view of all of the above, I order as follows:
If Ms. Coskun takes the position that she was not required by law to serve her Form 35.1 Affidavit upon Mr. Ozeke through the HSC process and does not choose to simply proceed at this time to have both the Amended Application and Form 35.1 Affidavit served together through the Canada’s Central Authority under the terms of the HSC, then she shall immediately take steps to arrange, through the Family Law Motions/Conferences Co-ordinators, to attend before this court at 9 a.m. on a day in the next two weeks, if at all possible, or as soon after that time as possible, to make submissions on the issue of whether the Form 35.1 Affidavit also had to be served in accordance with the HSC’s service rules. A factum and copies of any relevant legal authorities is required.
If Ms. Coskun agrees with this court’s tentative view regarding the need for her to have served the Form 35.1 Affidavit together with her Amended Application via the process required under the HSC, then she shall proceed to “re-serve” the Amended Application and serve her Form 35.1 Affidavit (or a new one, should any facts or circumstances that were in the one that she originally swore and was “served” upon Mr. Ozeke in May 2016 have changed since it was sworn) together, and along with any other document(s) that must be served with the originating document(s) according to the HSC. Given the information provided on the Hague Conference on Private International Law’s website respecting service in Turkey, out of an abundance of caution, the Form 35.1 Affidavit and all other documents shall be served in both English and Turkish.
The costs of this motion are reserved to the trial judge.
“S. R. Goodman, J.”
S.R. Goodman, J.
Date Released: May 25th, 2018
COURT FILE NO.: FS-16-20791
DATE: 2018-05-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ayse Coskun
Applicant
- and –
Yucel Ozeke
Respondent
ENDORSEMENT
S.R. GOODMAN J.