Case of the Day: Pitman v. Moll
Posted on April 30, 2014
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.”