Have you sent family law legal documents to someone in another country recently? If you have dealt with an international service issue recently, I would love to hear from you. I am updating my international service practice note for Lexis Practice Advisor® and would like to include practical tips in the update from other lawyers and individuals, particularly anyone who has dealt with service abroad during Covid-19. When we share our experiences, we can learn from each other and truly develop best practice guidelines for all.
Following the rules of the Hague Convention on Service Abroad was challenging even pre-Covid-19. Covid-19 brings new challenges but also new opportunities to reinterpret these rules for the modern age. With proper interpretation and good practice tips, we can ensure that these procedural hurdles do not become access to justice barriers.
With Covid-19, any in-person activity, including serving court documents, becomes more complicated. The good news is that the Hague Conference on Private International Law, which offers practical guidance on how to apply the Hague Service Convention rules, says that “there is nothing in the Service Convention that would prevent a State from effecting service by electronic means.” The tricky part is that service by “electronic means”, which includes email, must be permissible in both the country where the document originates and the country where the recipient is located. Thanks to Covid-19, our Ontario Family Law Rules were amended in September and finally embrace service by email as a valid form of regular service. (See Rule 6(2)(e).) Now, service that takes place by email on someone in a foreign jurisdication can be considered valid by an Ontario court in some circumstances.
The practical information relating to the rules for service on someone abroad is constantly being updated. New countries sign on to the Hague Convention on Service each year and others update their technical rules. Up to date information can be found online at https://www.hcch.net/en/instruments/conventions/specialised-sections/service . I strongly recommend that anyone who needs to send legal documents to someone outside of Canada get legal advice from a lawyer with recent experience with these issues. The time and cost wasted if service is not done properly can be significant.