The Hague Service Convention Overrides the Family Law Rules

Wang v Lin, 2016 ONSC 3967

This decision by the Divisional Court of the Ontario Superior Court of Justice overrules Justice Kiteley’s previous decision in the same case, which decided that the Family Law Rules represent a deliberate departure from the Rules of Civil Procedure, and thereby, do not require resort to the Hague Service Convention when documents are served internationally.

This case stands for the principle that in interpreting legislation, there is a presumption that the legislature intends to conform to international law. Although this presumption is rebuttable, the Court holds that the specific language of the Family Law Rules does not compel the result that the legislature intended to default on Canada’s international obligations under the Hague Service Convention.

BACKGROUND

The parties were married in the People’s Republic of China (the “PRC”) and have two children who were both born in the PRC. Five years into their marriage, the mother moved to Ontario with the children. In 2010, the mother returned back to the PRC, with the children. Soon after, the parties separated.

In 2012, the mother once again returned to Ontario (without the children) and started a family law proceeding in Ontario; she also sought and obtained an ex parte Mareva injunction against the father.

Once the father received the mother’s application and injunction order, he started a proceeding in the PRC, and brought a motion to stay the mother’s application and to set aside the injunction. In June 2012, Jarvis J. stayed most of the mother’s claims, but found that Ontario did have jurisdiction over her custody and access claim. Jarvis J. additionally set aside the injunction. Prior to this order, the mother had already moved the children from the PRC to Ontario.

Both parties then appealed Jarvis J.’s order. In 2013, the Court of Appeal stayed all of the mother’s claims (including her claim regarding custody and access). The Court of Appeal further found that the issue of whether the children ought to be returned to the PRC was to be addressed by way of a motion to the Superior Court of Justice. To date however, both parties have failed to bring such a motion, and the children have consequently remained with their mother in Canada.

In 2015, the mother issued another application, seeking to lift the stay that had been previously imposed and have the parties’ matrimonial property rights determined pursuant to the internal law of the PRC. Where the father had previously been paying substantial child support, but had recently stopped, the mother maintained that she could no longer pay her housing or the children’s schooling expenses.

Although the mother made an effort to serve the father with this second application, she did not seek to effect service in compliance with the provisions of the Hague Service Convention until late 2015. She additionally sought a motion seeking to validate her attempts at service, but the motion judge dismissed this motion. The mother then renewed the motion, and the judge validated her service.

The father then sought, before the Divisional Court, an order that would set aside the judge’s validation of the mother’s service.

RELEVANT STATUTORY CONTEXT

Pursuant to Article 1 of the Hague Service Convention, the “Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad”. Canada has been a signatory to the Convention since 1988.

Rule 17.05 of the Rules of Civil Procedure incorporates the Convention and provides that an originating process or other document that is to be served outside of Ontario and in a contracting state shall be served, (a) through the central authority in the contracting state, or (b) in a way that is permitted by the Convention. In terms of the PRC being the destination state, service of an originating process much be effected through the PRC’s Central Authority and all the documents that are served must be translated accordingly.

The Family Law Rules do not specifically mention service outside the jurisdiction, but do contain provisions for regular service, special service, substituted service and approval of irregular service.

ANALYSIS

The Divisional Court began its analysis by addressing whether the Family Law Rules adequately cover international service. Where the motion judge determined that the Family Law Rules do cover such service, the Court of Appeal respectfully disagreed in finding that its language did not clearly rebut the presumption that Ontario intends its legislation to conform to international law.

The Divisional Court further disagreed with the motion judge’s determination that the Family Law Rules concerning service should apply by analogy to service outside Ontario, and her conclusion that it was not appropriate or necessary to go beyond the Family Law Rules and refer to the Rules of Civil Procedure.

The Divisional Court found that the real issue here was whether the Family Law Rules dealt adequately with service outside the jurisdiction, and if not, whether it would be appropriate to apply the Rules of Civil Procedure. The Court of Appeal reasons that if the Hague Service Convention were to apply, then it would further necessitate usage of the Rules of Civil Procedure (for Rule 17.05 specifically implements the Convention in Ontario).

The Divisional Court concluded that Rule 17.05 – that which provides a complete and mandatory code for service in the states that have contracted to the Hague Service Convention – applies to family law cases. The Hague Service Convention explicitly provides that its provisions apply to all cases in civil and commercial matters, and where family law matters are civil matters, the Convention ought to apply.

The Divisional Court additionally noted that the facts of this case were not such that they warranted an access to justice exception to the Hague Service Convention. The Court found that the need to comply with the Convention did not create or contribute to the source of any delays in the matter. Consequently, the Divisional Court allowed the appeal and set aside the motion judge’s order – requiring the mother to re-serve the appropriate documents in accordance with the Hague Service Convention.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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