COURT FILE NO.: FC-11-793-3
MOTION HEARD: 20210412
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Katherine Smith, Applicant
AND
Anthony Redhead, Respondent
BEFORE: Master Kaufman
COUNSEL: Karen Kernisant, for the Applicant
Anthony Redhead, representing himself
HEARD: April 12th, 2021
REASONS FOR DECISION
[1] The Applicant brings this motion in writing for an order for substituted service on the Respondent who resides in the United States.
[2] The Applicant retained a process server in the United States who attempted to serve the Respondent on three separate occasions. On all occasions, nobody answered the door. The process server believes that the Respondent is evading service.
[3] The Applicant proposes to serve the Respondent by e-mail at the address that he provided in his Form 4 (Notice of Change in representation) which is dated March 17, 2021. In addition, she proposes to serve him by Facebook messenger because his Facebook page advertised a musical event which would be held on April 15, 2020.
[4] In Wang v. Lin[^1], the Divisional Court held service of family law originating documents on a party outside Canada requires compliance with the 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 (the "Hague Service Convention"). The Court also held that the Family Law Rules do not deal adequately with service outside the jurisdiction and that it is therefore appropriate to apply r. 17.05 of the Rules of Civil Procedure[^2] in such cases.
[5] R. 17.05 of the Rules of Civil Procedure provides that an originating process or other document to be served outside Ontario in a contracting state shall be served,
a. through the central authority in the contracting state; or
b. in a manner that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario.
[6] The United States is a party to the Hague Service Convention. Article 10 of the Convention allows for certain manners of service if the State of Destination does not object. Service by e-mail or by social media is not one of the authorized manners of service under the Hague Service Convention. However, Article 10(a) does permit service by postal channels. It reads:
Art. 10 Provided the State of destination does not object, the present
Convention shall not interfere with –
a) the freedom to send judicial documents, by postal channels, directly to persons abroad […]
[7] The United States does not object to service by postal channels in accordance with Article 10(a).[^3] Substituted service by mail is accordingly permitted under the Hague Service Convention and the Rules of Civil Procedure.
[8] The Court is satisfied that the Motion to Change would come to the Respondent's attention if it were served by regular first class mail and registered mail because the Respondent recently provided his address in his Form 4 and because the process server who attended at the Respondent's address noted that there were cars parked in the driveway and heard a dog barking.
[9] Based on the foregoing, the Court allows the Applicant's motion for substituted service by regular first class and registered mail at 504 Peso Trail, Cedar Park, Texas, 78613. Service shall be effective 10 days after the Motion to Change and all required attachments are sent.
Master Kaufman
DATE: April 12th, 2021
[^1]: 2016 ONSC 3965 (Div. Ct.). [^2]: R.R.O. 1990, Reg. 194. [^3]: https://www.hcch.net/en/states/authorities/details3/?aid=279