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by Daniel Gloade on April 28, 2014

We are living in an age where national boundaries mean less and less.  More people are moving overseas in order to take advantage of employment opportunities and there are more first-generation Canadians than ever before.  While these are good developments, they add a level of complexity in family law legal matters.

First, you must decide which jurisdiction you want to commence your proceeding.  Assuming you want to have your action heard in Ontario then you must find a process server or foreign equivalent that will serve documents on your former spouse residing in the other country.  The issue lawyers frequently forget, however, is to determine whether the method of serving documents is one which will be recognized in Ontario.

The last issue was seriously examined by the Honourable Mr. Justice Douglas Gray in the decision of Pitman v. Mol, 2014 ONSC 2551.

In general, judges in family law proceedings can declare service of a legal document to be sufficient even if the Family Law Rules are not adhered to strictly.  Justice Gray held, however, that Judges in Ontario have no discretion, however, with regard to adherence to the provisions of the Hague Convention.  The Hague Convention includes rules regarding the service of documents in civil or private legal matters.

According to the relevant Hague Conventions, your first avenue of service is to send documents to a country`s Central Authority.  The United States of America State Department website is particularly helpful by listing the countries with these Central Authorities.

There are two exceptions to the use of the Central Authority.  First, service can be performed by consular staff through diplomatic channels. Second,

  1.  if the state does not object;
  2. service can be made using the methods used normally in that state;
  3. providing that the process would also be considered sufficient in Ontario.

Generally speaking, therefore, a process server in the United States handing legal documents to someone personally should be sufficient in order to start the process.

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