Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Case of the Day: Pitman v. Moll

The case of the day is Pitman v. Moll, 2014 ONSC 2551. The case was for modification of a child support order. The wife resided in Ontario, and the husband resided in Georgia.

The wife effected service of process via a private process server. Although the husband had not entered an appearance, the judge, sua sponte, undertook a very clear analysis of the service of process. He asked two questions: first, did the Hague Service Convention apply? and second, had the wife complied with the Convention? These were the right questions to ask, since the Convention, as construed in Canada (and in the United States), is exclusive: if it applies, parties must comply with it in order to effect service of process.

Under Article 1, the Convention applies to “civil or commercial matters.” The judge held, correctly, that family law cases are “civil” for purposes of the Convention. This is also the result in the United States, and it reflects the view of the Hague Conference.

The judge went on to hold that the service was proper. Under Article 10(c), absent an objection from the United States, the Convention does not interfere with “the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons in the state of destination.” The United States has not objected to service under Article 10(c), and a private process server is a competent person to serve process under US law. The judge made a point of the fact that the process server here was licensed under the law of Georgia. It seems to me, though, that it doesn’t matter whether the process server is competent under the law of the US state where the service occurs. It should be enough that the process server is a competent person under federal law, and under FRCP 4(c)(2), “any person who is at least 18 years old and not a party may serve a summons and complaint.”

Ted Folkman
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4 responses to “Case of the Day: Pitman v. Moll”

  1. Alejandro Manevich

    Ted, I would like just to offer a couple of additional points that may be of interest to Canadian practitioners.

    The importance of this case from a Canadian perspective is that Ontario’s Family Law Rules, which govern civil procedure in family law proceedings, do not mention the Hague Convention – in fact, as the judge notes, they do not even refer to service outside Ontario. The rules applicable to ordinary civil proceedings (the Rules of Civil Procedure), by contrast, incorporate the Hague Convention explicitly, at r. 17.05. In Canada, as in the U.S., treaties are not self-executing, so one could argue that the absence of any implementing provisions for the Hague Convention in the Family Law Rules means that as a matter of domestic Ontario law, service under the Convention is not required. That argument is now significantly less likely.

    I have heard anecdotally that many family law practitioners are unaware of the Convention and have not used it for serving documents ex juris. In addition, family law proceedings in particular see a disproportionately high number of self-represented litigants, who presumably are even less likely to know about the rules for serving documents abroad. I should add that plain language “Guide to Procedures in Family Court” on the Ontario Ministry of the Attorney General’s own website says nothing about this either. (Though it does give the caveat that the guide is not legal advice, which I am sure the legions of family law litigants who cannot afford a lawyer will take to heart.)

    For what it’s worth, I do think Pitman is correct as a matter of law. However, I also think it has the potential to exacerbate already challenging problems of access to justice for family litigants. I would think the least our system could do is amend the Family Law Rules as quickly as possible, since in their current form they are a trap for the unwary.

    Alex

    Reply
    1. Ted Folkman

      Thanks, Alex. That’s particularly interesting, because under US law the Convention is self executing. See Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 699 (1988); Vorhees v. Fischer & Krecke, 697 F.2d 574, 575 (4th Cir. 1983). It seems to me that if, under Canadian law, the treaty is not self-executing, then of course you’re right that the Canadian powers that be should amend the necessary rules to give effect to the Convention.

      Reply
      1. Alejandro Manevich

        Ted, I was entirely unaware of the apparent split between the U.S. and Canada on the self-executing character of the Hague Convention. The notion expressed in the cases you refer to, that the Convention requires no specific legislative action, is reflected to a more limited extent in Canadian law through the canon of statutory construction that Canadian legislation and regulations should be interpreted to the extent possible in conformity with Canada’s international obligations (see R. v. Hape, 2007 SCC 26). That was the reasoning used by the judge in Pitman, on the basis that there was a true gap in the Family Law Rules. However, a treaty is normally self-executing in Canada only to the extent that it deals with executive branch functions or matters already addressed by legislation. I rather doubt treaties could simply take precedence over provincial rules of civil procedure in all cases; this would seem inconsistent with Canadian constitutional law on federal-provincial division of powers and the implementation of treaties (see the Labour Conventions Cases (Canada (Attorney General) v. Ontario (Attorney General) et al.), [1937] UKPC 6).

        At the risk of confirming the many legal jokes about Canadians and discussions of federalism, I would also refer you to the discussion a few years ago on Slaw.ca regarding a case on the application of provincial limitation periods to the enforcement of foreign arbitral awards – a case that later made its way to the Supreme Court of Canada. In the comments, John Gregory made some helpful points about the challenges of federalism and treaty implementation. (As John is a senior counsel for the Ontario Ministry of the Attorney General, I should emphasize that his comments were not made in his official capacity.)

        Alex

        Reply
        1. Ted Folkman

          I remember the Yugraneft case: it was one of the very first I ever wrote about!

          I confess I know very little about Canadian-style federalism. It strikes me, though, that the more power a national government has to implement the nation’s international law obligations the better. Certainly the United States is not perfect in this regard, as the Medellin case shows.

          Reply

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