Law Times

Page 4 November 26, 2018 • Law Times www.lawtimesnews.com Judgment could streamline service in foreign countries Lawyers 'forwarding authorities' under convention BY ALEX ROBINSON For Law Times F amily lawyers say a rare judgment concerning the service of divorce docu- ments in India could streamline the process of serv- ing respondents in other coun- tries. In Tiwari v. Tiwari, Ontario Superior Court Justice Andrew Sanfilippo found a woman could serve a divorce applica- tion to her husband in India via email and regular mail. Sanfilippo also determined that the woman's lawyer, Trevor Smith, qualified as a forwarding authority under the Hague Ser- vice Convention — meaning he would not have to go through a central authority in Ontario first before sending the documents to India. Lawyers say this judgment removes a time-consuming step in the process of serving some- one in a foreign country that is a signatory to the Hague Service Convention. "At the very least, this judg- ment confirms that we don't have to take yet another extra step in that chain by sending them through the Ontario cen- tral authority," says Smith. "We can send it directly to a foreign country." The Hague conventions are a number of international treaties that came out of the Hague Con- ference on Private International Law and have become binding law in various countries once ratified. The Hague Service Conven- tion dictates how and when re- spondents can be served in other countries. Smith says the problem with the Hague Service Convention is that it is still relatively untested and confusingly written. The lawyer says the point of the Tiwari proceeding was to obtain a rare order for substi- tuted service through electronic means as his attempts to serve his client's husband through the central authority in India had failed. In order to serve legal docu- ments in a foreign country that is a signatory to the Hague Ser- vice Convention, a "forwarding authority" in the country where the documents originated has to send them to the central au- thority in the country where the person to be served is and then the central authority does the service. Smith and his client did not hear back from the central au- thority in India whether the ser- vice had taken place and, there- fore, launched the proceedings to get an order for substituted service. In the ensuing court pro- ceedings, Sanfilippo posed an unexpected question. The judge asked whether a lawyer was required to first send documents to be served to a central authority in Ontario or whether they could send them directly as a forwarding author- ity to the central authority in the country in which they were to be served. This was the first time that a judge considered this issue in Canada, according to Smith. "Amazingly, or maybe not amazingly, nobody had ever asked that question in court before, so the judge wanted confirmation that that's how it worked," says Smith. He says the judge wanted to make sure he had previously served the parties properly through the mechanisms of the Hague Convention, as they needed to show they had tried to serve through the normal chan- nels before substituted service could be granted. As Smith had forwarded the serving documents to the cen- tral authority in India without first sending them to the central authority in Ontario, the judge needed to determine whether the lawyer could be considered a forwarding authority. Under the convention, "the authority or judicial officer competent under the law of the state in which the documents originate" can request a central authority in another country to carry out service. Sanfilippo found that On- tario lawyers are "judicial offi- cers" under the convention and, therefore, forwarding authori- ties. As this would make Smith's attempts to serve a "proper re- quest," the judge granted the or- der for substituted service. Lawyers say the judgment will speed up what is often a cumbersome process. "The system of service will be much more streamlined if you can just forward the documents yourself to the central authority in the country that you're look- ing to have them served in," says Steven Bookman, of Bookman Law PC, who was not involved in the case. He says the judgment is help- ful for family lawyers looking to understand how documents are served in foreign jursidictions under the convention and what the method is for circumventing that process if not successful. He says many lawyers in On- tario probably are not familiar with the process, as it is not dis- cussed very often in law schools. Bookman says he has never seen a judge refer to Canadian lawyers before as "judicial offi- cers" and that, before this deci- sion, many lawyers would have assumed they would have to go through the courts or the attor- ney general's office to get docu- ments forwarded to a foreign country. Robert Shawyer, of Shawyer Family Law & Mediation PC, who was not involved in the case, says the judgment high- lights that the Family Law Rules need to be updated. The rules allow for the service of documents through email, but only if the party being served consents or if the court issues an order. Lawyers need a court order to use substituted service. The Family Law Rules also require divorce applications to be served through special ser- vice, and they do not deal with the issue of service when a party is in another country. As the rules allow for judges to have a lot of discretion, Shaw- yer says, it would have been help- ful for the judge in this case to set out a clear test about the rules surrounding electronic service in a foreign jurisdiction. "What's happening is that counsel still aren't asking for substituted service by electronic means because it's not allowed for by the Family Law Rules and so I think that's why these deci- sions are so rare," he says. "The only way we're going to change it is by changing the Family Law Rules and coming up with a series of rules that gov- ern service by electronic means and that govern service interna- tionally." Bookman, however, says the judgment shows the rules work. "This decision actually con- firms that we have methods of service that cover a multitude of different fact situations and that they work," Bookman says. "The reason it works is be- cause of the provision in the rules that allow judges to do whatever they feel is just." LT NEWS © 2018 Thomson Reuters Canada Limited 00253KE-93360NK New Edition Watson & McGowan's Ontario Civil Practice 2019 Derek McKay and Michael McGowan Founding Authors: Garry D. 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Facebook, Inc. – Handley Estate v. DTE Industries Limited – Ferreira v. St. Mary's General Hospital – Scicluna v. Solstice Two Unlimited – Union Building Corporation of Canada v. Markham Woodmills Development Inc. – Canada (Procureur general) v. Thouin Thomson Reuters ProView® The eBook * version of this publication is available through your web browser, or can be downloaded to your computer, tablet, or smartphone. Visit store.thomsonreuters.ca/proview to learn more and to see the complete collection of ProView eBooks. *Not available to trade bookstores, third-party distributors, and academic institutions. Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Trevor Smith says the problem with the Hague Service Convention is that it is still relatively untested and confusingly written. The system of service will be much more streamlined if you can just forward the documents yourself to the central authority in the country that you're looking to have them served in. Steven Bookman

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