In every family litigation proceeding, there are rules that must be followed around the service of documents – which gives the opposing party formal written notice of the proceeding, or a step in the proceeding. (Think of those “you’ve been served!!” scenes in Hollywood movies).
Under Ontario legal procedure, the service of documents must be accomplished in accord with numerous rules governing both civil matters and Family Law proceedings specifically. This means that for Family law disputes where both spouses live in the same province, then they are both bound by the same set of provincial rules relating to procedure, including how service of documents is validly achieved.
But what happens when one of the spouses lives permanently in another country? What are the rules that govern the service of legal documents then?
The answer lies in the Hague Service Convention, the full title of which is the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
It is an international convention, adopted by numerous countries around the world, and designed to “create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.”
The Convention has been signed or ratified by more than 75 countries, including Canada. This means that it conceivably applies to Family Law proceedings that are commenced in this country, including those in Ontario.
Specifically, the Convention addresses those situations where a person in Ontario wants to serve an originating process (meaning a court claim document, court application, or motion materials) on a person who lives outside of Canada in a country that has also signed onto or ratified the Convention.
The service of documents on the person in that other country must adhere to the Convention requirements, in order to valid and recognized by the Ontario court.
- If the Hague Service Convention applies to a situation, then its terms are mandatory. It cannot be “opted out of.”
- A person also cannot avoid having to comply with the requirements of the Convention by obtaining a court order for substituted service, an order for validation of incomplete service, or an order that service can be dispensed with entirely.
There are also certain rules for proving that service has been achieved in that other country in a manner that satisfies the dictates of the Convention. Specifically:
- The party who is bringing the motion or proceeding bears the burden of proving that service was in compliance with the Convention’s requirements.
- An exception is where it can be proven that the document recipient’s address is unknown.
- In that case, the party must show that he or she has made reasonably diligent efforts to learn the recipient’s address.
- The party cannot be permitted to avoid the Convention’s application by being willfully oblivious to information about the recipient’s whereabouts.
In an upcoming Blog, we will take a practical look at how these requirements “play out” in a typical Family law case in Ontario.
See the full text of the Hague Service Convention, here.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com