International Family Law: What if Spouse Doesn’t Live in Canada?

Child support and custody, spousal support, division of matrimonial property, and divorce can be very complex in international family law matters. The breakdown of the marriage is difficult without the complications of geographical distance, jurisdictional issues, and conflicting foreign laws. For example, if your spouse does not live in Canada, how do you notify your spouse of your family law claim in BC? This article will examine importance of proper service of documents in international family law matters.

Starting family law proceedings in BC

In BC, a person must file specific documents with the court to start family proceedings to deal with matters such as divorce, division of property and debt, child custody, or child support. Those documents must then be served on the other party in accordance with specific rules. The rules in BC state that a Notice of Family Claim, which starts family law proceedings, must be served personally (i.e., physically handed to the person by someone other than yourself). Other types of documents, such as the Response to Family Claim, can be sent by mail, e-mail, or fax (depending on the address for service provided in the Notice of Family Claim).

Rules for service abroad in international family law matters

Part 6 of BC’s Supreme Court Family Rules  contains the requirements for service of documents in family law proceedings. There are specific sections in Part 6 that deal with service in international family law matters. In particular, Rule 6-5(9) provides the way that documents must be served outside of BC:

Manner of service abroad

(9) A document may be served outside British Columbia

(a) in a manner provided by these Supreme Court Family Rules for service in British Columbia,

(b) in a manner provided by the law of the place where service is made if, by that manner of service, the document could reasonably be expected to come to the notice of the person to be served, or

(c) in a state that is a contracting state under the Convention, in a manner provided by or permitted under the Convention.

The reference to “the Convention” in Rule 6-5-(9)(c) means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at the Hague on November 15, 1965.  The Hague Service Convention applies in all civil or commercial matters where there is occasion to transmit a judicial or extrajudicial document for service abroad, provided that the country in question is a “contracting state” under the Convention. If you need to know whether a specific country follows the Convention, here is a list of contracting parties.  The countries that signed the Hague Service Convention intended that it should apply to family law matters, so that includes claims related to child support payments, separation and divorce orders, consents for adoption, acceptances of paternity, and objections to marriage.

What happens if I do not follow the requirements for service outside of BC?

When you ask the courts in BC to make an order in an international family law matter, you want to ensure that the BC order will be enforceable in the country where your spouse lives. If the country in which your spouse lives is a contracting state under the Hague Service Convention, you must follow the service requirements of that country as set out in the Convention. An order of the BC courts may not be recognized and enforced in another country if in serving the documents you disregarded the terms of the treaty by which Canada and the other country have agreed to be bound. You may also experience delay if the court declines to hear your application or make an order because you did not follow international family law service requirements.

Example of problems caused by improper service in an international family law matter

The saga in Wang v. Lin, 2016 ONSC 3967 is a prime example of the delay and costs implications that arise if service rules are not followed in an international family law matter. In that case, Ms. Wang and Mr. Lin married and had two children in the People’s Republic of China, which is a contracting state under the Hague Service Convention. The family moved to Canada, but Mr. Lin later returned to China. The family moved back and forth between China and Canada for several years until the spouses separated. In 2012 the wife commenced family law proceedings in Ontario. When the husband received the wife’s Ontario-based family law application, he started a family law proceeding in China. Throughout the hearing of the applications and appeals in relation to those parallel claims, the children remained with their mother in Ontario.

Mr. Lin paid substantial child support but in July 2015, that support stopped. Ms. Wang was unable to pay her housing expenses or the children’s private school expenses, so she commenced a new family law application in Ontario. She made extensive efforts to serve Mr. Lin in China with this new application, but none of those efforts complied with the service requirements of the Hague Service Convention. Ms. Wang brought an ex parte application seeking to validate service of the application based on her attempts to serve Mr. Lin in China. In December 2015, a motions judge incorrectly decided that the Family Law Rules provided a complete code for the service of documents in family law proceedings and did not require compliance with the Hague Service Convention when documents were to be served internationally. In May 2016 Mr. Lin successfully appealed the motion judge’s decision that validated the service of the wife’s family law application. On appeal, the court confirmed that an originating document in a family law case that is served outside of Canada in a contracting state must be served in compliance with the Hague Service Convention. Ms. Wang was ordered to pay Mr. Lin’s appeal costs in the amount of $25,000.

Bottom line on service of documents in international family law matters

The law in BC is clear that international service of documents required in family proceedings must conform to international law. If you have questions about service of documents in international family law matters, or if your spouse lives in another country and you want to know how to obtain an enforceable order with respect to child support, child custody, division of property, or divorce, contact Onyx Law Group’s team of experienced family law lawyers at (604) 900-2538.