COURT FILE NO.: FC-97-55164-2
DATE: 2019/10/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dubravka Petrovic, Applicant -and- Dusan Petrovic, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, not represented Tanya Davies, for the Respondent
HEARD: In writing, on further evidence filed by Mr. Petrovic; Ms. Petrovic not filing any evidence or submissions
ENDORSEMENT
[1] Mr. Petrovic seeks to terminate child support for his two children, now ages 26 and 27. The Order of the late Justice Polowin dated September 17, 2002, requires Mr. Petrovic to pay child support to Ms. Petrovic. Mr. Petrovic has brought a Motion to Change this order.
[2] An interim order was granted in this matter by Justice Kershman, on November 29, 2018. The interim order provides that Ms. Petrovic is noted in default, that the matter shall proceed to an uncontested trial, that Mr. Petrovic’s payments to FRO shall cease, and that any payments taken after November 29, 2018 shall be returned to Mr. Petrovic.
[3] This matter was before me as an uncontested trial on June 13, 2019. The responding party on this motion[^1], Ms. Petrovic, resides in Serbia. According to the affidavits of service filed, Ms. Petrovic was personally served with the Motion to Change documents in Serbia on September 21, 2018. Ms. Petrovic was personally served a second time on November 21, 2018, also in Serbia. She has not filed a response.
[4] At the June 13, 2019 hearing, I was satisfied on the evidence before me that the child support for the two children should terminate. However, before granting this final order in the absence of Ms. Petrovic, I ordered Mr. Petrovic to file further evidence to satisfy the Court that service on Ms. Petrovic complied with the Hague Service Convention[^2] or that the Convention did not apply. I directed Mr. Petrovic to provide further evidence on the issue of service to my attention over the family counter, within 90 days.
[5] Mr. Petrovic has filed a further affidavit, sworn August 15, 2019. I am not satisfied, based on this further evidence, that service on Ms. Petrovic complies with the Hague Service Convention or that the Convention does not apply. Given this, I decline to grant the final order requested by Mr. Petrovic to terminate child support and require Mr. Petrovic to serve Ms. Petrovic in accordance with the Hague Service Convention.
[6] The Hague Service Convention applies to family law proceedings in Ontario[^3]. The Hague Service Convention applies where an originating process is to be served on a party that lives outside of Canada in a country that has signed onto the convention. When the Hague Service Convention applies, its terms are mandatory. The application of the Convention cannot be avoided by orders for substituted service, validating service, or dispensing with service.[^4]
[7] It is clear on the evidence before me that Ms. Petrovic resides in Serbia.
[8] It is also clear on the evidence before me that Ms. Petrovic was served while she was in Serbia.
[9] Serbia is a signatory to the Hague Service Convention. The service of this Motion to Change on Ms. Petrovic must, therefore, comply with the Convention. The only exception to this is if the Convention does not apply. If Ms. Petrovic’s address is not known, the Convention does not apply. The Convention states, at Article 1:
“This Convention shall not apply where the address of the person to be served with the document is not known.”
[10] Mr. Petrovic, the moving party in this proceeding, bears the burden to show proper service. This burden requires him to show, on a balance of probabilities, that the Convention does not apply because Ms. Petrovic’s address is not known. The evidence provided by Mr. Petrovic does not meet this burden.
[11] The burden to prove service that lies on Mr. Petrovic requires him to show that he has made reasonably diligent efforts to learn Ms. Petrovic’s address. A party should not be permitted to avoid the application of the Convention by “closing its eyes” to the obvious. This approach to the interpretation of Article 1 of the Convention is consistent with jurisprudence in the United States[^5]. The evidence before me does not support that Mr. Petrovic has made reasonably diligent efforts to learn Ms. Petrovic’s address and been unsuccessful in doing so. In contrast, the evidence supports that Ms. Petrovic’s address is ascertainable. Given this, I find that the Hague Service Convention applies and order Mr. Petrovic to serve Ms. Petrovic in accordance with the Hague Service Convention.
[12] The primary evidence that supports that Ms. Petrovic’s address is ascertainable is that Mr. Petrovic was able to personally serve Ms. Petrovic on two occasions with the Motion to Change documents. Mr. Petrovic’s affidavit states that he did not know Ms. Petrovic’s address in Serbia when he commenced these proceedings. He assumed she was living in Belgrade. He knew a friend that was to meet with her. He had his friend meet her with a lawyer, who served the documents on her. The certified english translation of Mr. Milojevic’s affidavit of service appears to include Ms. Petrovic’s address. The translated affidavit states:
“…on 21st September 2018, personally handed in to Dubraka Petrovic from Arilje, 31230 Arilje, the Republic of Serbia, with residence at 12, Volvode Misica… the following documents…”
[13] The second affidavit of service, for the service on November 21, 2018, also appears to contain an address for Ms. Petrovic. Mr. Jan Luka states he personally served Ms. Petrovic at:
“BULEVAR KRALJA ALEKSANDRA 290, 11050 BEOGRAD, APT.#28/VI., SERBIA”
[14] Mr. Petrovic does not explain why Ms. Petrovic’s address is not known when the affidavits of service appear to provide addresses for her. Notably, Mr. Petrovic’s affidavits also do not state that he has made any efforts to learn Ms. Petrovic’s address. Mr. Petrovic does not state whether he asked any persons likely to have contact with Ms. Petrovic for her address. This includes his friend in Serbia, through which he was able to personally serve her. Mr. Petrovic does not state that he has conducted searches for her address through publicly available information.
[15] Mr. Petrovic’s evidence is also notable in that he uses the past tense in two different places when stating his knowledge of Ms. Petrovic’s address but fails to state what his present knowledge of her address is. He states:
• “I did not know her address.”
• “…we were dealing with someone whose address was not known…”
[16] Similar concerns arise due to Mr. Petrovic’s statement that he communicated with Ms. Petrovic earlier this year, but that she did not tell him her address. However, he does not state anywhere in his material that he asked Ms. Petrovic for her address, even though he has had contact with her before he commenced this proceeding and within the last year.
[17] The evidence before me does not support that Mr. Petrovic has made reasonably diligent efforts to learn Ms. Petrovic’s address and been unsuccessful in doing so. In contrast, the evidence supports that Ms. Petrovic’s address is ascertainable. Given this, I find that the Hague Service Convention applies.
[18] Where the party being served lives in a country that has signed onto the Hague Service Convention, service can be conducted by delivering the documents to a designated central authority in the signatory country. Service will be effected by the central authority under local laws and then proven by a certificate of service to be provided by the central authority. This service has not been done in this case.
[19] The Republic of Serbia also requires that documents served under the Convention be translated into the official language of the Republic of Serbia, being Serbian. There is no evidence before me that the documents have been translated.
[20] Some countries allow service by methods other than through the Central Authority. Mr. Petrovic has not provided any submissions or evidence on the issue of whether service has been effected under other arrangements permitted by Serbia under the Convention.
[21] Given the above, I find that the Hague Service Convention applies and order Mr. Petrovic to serve Ms. Petrovic in accordance with the Hague Service Convention. The provision of the November 29, 2018 order noting Ms. Petrovic in default is set aside. I further order that paragraph 2 of the interim order, dated November 29, 2018 (which provides for the child support to cease), shall cease to have effect one year from the date of this order, unless a further order of the court provides otherwise. This will allow Mr. Petrovic ample time to take immediate steps to have Ms. Petrovic served in accordance with the Hague Service Convention, and return this matter to court for adjudication.
[22] There is a further issue in this matter. Mr. Petrovic’s material does not contain a copy of the issued and entered order of Justice Polowin dated September 17, 2002. He has only provided a copy of the endorsement. A copy of the issued and entered order dated September 17, 2002 is required before this matter can proceed.
Date: October 8, 2019 Justice P. MacEachern
COURT FILE NO.: FC-97-55164-2
DATE: 2019/10/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dubravka Petrovic, Applicant
-and-
Dusan Petrovic, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, not represented
Tanya Davies, for the Respondent
ENDORSEMENT
MacEachern J.
Released: October 8, 2019
[^1]: Although she is the responding party to this Motion to Change, Ms. Petrovic is referred to as the Applicant in the style of cause, because of her status in the original proceeding. [^2]: Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 15 November 1965, 658 U.N.T.S. 163, C.T.S. 1989/2 [^3]: Wang v Lin, 2016 ONSC 3967 [^4]: Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1 [^5]: See, for example, Luxottica Group S.P.A. and Oakley, Inc. v Partnership and Unincorporated…, 391 F.Supp.3d 816 United States District Court, N.D. Illinois, Eastern Division