De Guzman v De Guzman, 2023 ABKB 624

Court of King’s Bench of Alberta Citation: De Guzman v De Guzman, 2023 ABKB 624 Date: 20231106 Docket: 4801 195112 Registry: Calgary Between: Mark Dean Piamonte De Guzman Plaintiff - and - Ivie Perona De Guzman Defendant Corrected judgment: A corrigendum was issued on February 1, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of Justice EJ Sidnell _______________________________________________________ [ 1 ] These reasons relate to a Desk Divorce application and address the issue of service in Alberta divorce proceedings and the complexities of service and child support over international borders.

For the reasons that follow, I am not satisfied that service is in order or that child support is adequately dealt with in the proposed form of Divorce Judgment and Corollary Relief Order (without oral evidence). Marriage and separation

[ 2 ] Mr. De Guzman and Ms. De Guzman were married on July 23, 2005, in Pagsanjan, Laguna, Philippines. According to Mr. De Guzman’s Affidavit of Applicant for Divorce, sworn on August 8, 2023, the parties separated on October 24, 2012. [ 3 ] The parties have two children together, born in 2006 and 2008, who reside with their maternal grandmother, in Pagsanjan, Laguna, Philippines. Statement of Claim for Divorce [ 4 ] Mr. De Guzman filed a Statement of Claim for Divorce on October 28, 2022, and eventually applied for a Desk Divorce with corollary relief. Mr.

De Guzman has standing for this application as he has been a resident of Alberta for at least one year. As discussed in greater detail below, Ms. De Guzman, does not reside in Canada. Substitutional Service Order and service on Ms. De Guzman [ 5 ] Mr. De Guzman applied to an Applications Judge for a substitutional service order and filed two affidavits: (

a) an Affidavit – Substitutional Service Outside of Canada, sworn March 30, 2023 and filed April 19, 2023 (First Service Affidavit); and (

b) a Supplemental Affidavit, sworn April 13, 2023 and filed April 19, 2023 (Second Service Affidavit). First Service Affidavit [ 6 ] The First Service Affidavit is based on a court template that applicants can use to assist them in providing the Court with pertinent information. [ 7 ] Completing the

section “[t]he Respondent lives in”, Mr. De Guzman entered “Unknown”. In a

section where the template affidavit states: “Click here to enter name of resource reviewed by Applicant – e.g. Hague Service Convention Website”, Mr. De Guzman entered “I have reviewed Hague Convention website available at Alberta courts”. The template affidavit then states: “and I believe the country where the Respondent lives”, whereupon Mr. De Guzman checked the template box stating: Is a Contracting State to the Hague Service Convention, but I do not know the Respondent's mailing address. I have taken the following steps to try and find out the Respondent's Address: [ 8 ] Mr.

De Guzman then included the following information: I have been reaching out to her relatives back in the Philippines and I even reached out to our common friends. I felt that they knew where she is and know her contact information but they are just not disclosing to me. They are giving different and confusing information, I heard from a friend that [Ms. De Guzman] left the Philippines and went to Middle East. I asked my son [who resides with his maternal grandmother in the Philippines] about it and he said that his mother is in Manila but do not know exactly where she is. No one from [Ms.

De Guzman's] family can confirm where she really is. [ 9 ] Mr. De Guzman also checked a box that stated he had sent an email to Ms. De Guzman using the email address that he proposed for service, and it was not returned undelivered. Later in the First Service Affidavit, Mr. De Guzman said that he had sent Ms. De Guzman an email on January 17, 2023. Mr. De Guzman proposed serving Ms. De Guzman by email. [ 10 ] In conclusion, Mr. De Guzman said that he had “exerted all possible efforts” to locate Ms. De Guzman but he was not successful.

He also said that “[n]one of the information [he] received can be verified” and that he knew of no other way to find out the out Ms. De Guzman’s “exact address”. Second Service Affidavit [ 11 ] In the Second Service Affidavit, Mr. De Guzman said: In ... 2022, [Ms. De Guzman] applied for a job and in her resume she indicated [the proposed email address]. My mother knew the company where she applied for a job and mentioned it to her. My mother got the email address from there and gave it to me. Attached as Exhibit "A" is a screenshot of Respondent's resume but it is blurred. [Ms.

De Guzman] mentioned to our common friend that she received a notice about the 1 st docket court attendance that I filed. This communication with a common friend was through Facebook Messenger. This was about December 2022. I attached the screenshot of their communication as Exhibit "B". This further proves that she owns the email address, has access to it, and receives communications sent to it. [ 12 ] As noted by Mr. De Guzman, Ms. De Guzman’s email address in the photo of the resume is illegible.

The resume also indicates a residential mailing address which is in Pagsanjan, Laguna, Philippines, the same city in which the parties’ two children live with their maternal grandmother, but there does not appear to be a street address. [ 13 ] In relation to the Facebook Messenger exchange referred to in the body of the Second Service Affidavit, Mr. De Guzman provided a copy of the communication and an official translation from Tagalog to English, which states, in part:

His attorney sent divorce papers. Haha. Before I give what he wants to happen, I will make sure first of my children’s future. [ 14 ] There is no indication on the Court file that Mr. De Guzman had a lawyer as suggested by Ms. De Guzman; however, Mr. De Guzman filed for an appearance in Family Docket Court where he was directed to obtain an international service order from an Applications Judge. In his Second Service Affidavit, Mr. De Guzman inferred from Ms. De Guzman’s Facebook Messenger exchange that she “owns the email address, has access to it, and received communications sent to it”.

April 17, 2023 Substitutional Service Order [ 15 ] On April 17, 2023, a Substitutional Service Order was granted which permitted Mr. De Guzman to personally serve on Ms. De Guzman the Statement of Claim for Divorce, together with all other documents in the Action, by scanning the documents and sending them by email to the specified email address. [ 16 ] The Substitutional Service Order was granted on the basis that “the country in which the Respondent resides is a Contracting State to the Hague Service Convention, but the Respondent’s mailing address is not known”. Affidavit of Service [ 17 ] On July 5, 2023, Mr.

De Guzman swore an Affidavit of Substitutional Service Outside of Canada, confirming that, on April 23, 2023, he served Ms. De Guzman with the Substitutional Service Order, First Service Affidavit, Second Service Affidavit and the Statement of Claim for Divorce. Noting in default and following steps [ 18 ] Ms. De Guzman was noted in default on July 14, 2023. [ 19 ] On August 23, 2023, Mr. De Guzman filed: (

a) Affidavit of Applicant for Divorce; (

b) Parenting After Separation E-Course certificate; (

c) Request of Divorce (Without Oral Evidence); and (

d) Proposed Divorce Judgment and Corollary Relief Order (without oral evidence). [ 20 ] In his Affidavit of Applicant, Mr. De Guzman stated that the Statement of Claim for Divorce incorrectly noted the date of separation as being October 24, 2016, and that it should have been October 24, 2012. Since she was noted in default, and there is no affidavit of service to suggest otherwise, it appears that Ms. De Guzman was not served with a copy of any of the materials filed by Mr. De Guzman on August 23, 2023.

Service Outside of Canada and the Hague Service Convention Purpose of the Hague Service Convention [ 21 ] Rule 11.26 of the Alberta Rules of Court , Alta Reg 124/2010 (the Rules ) outlines the methods for service outside of Alberta: 11.26(1) Subject to subrule (2), unless the Court otherwise orders, if a document may be served outside Alberta under these rules, the document must be served (

a) by a method provided by these rules for service of the document in Alberta, or (

b) in accordance with the law of the jurisdiction in which the person to be served is located.

(2) Where a document is to be served in a jurisdiction to which the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applies, the document must be served in accordance with Division 8. [ 22 ] In these Reasons, I refer to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters as the “ Hague Service Convention” . [ 23 ] In Metcalfe Estate v Yamaha Motor Powered Products Co Ltd , 2012 ABCA 240 , at paras 49 to 53 , footnotes omitted, McDonald J, on behalf of the majority, addressed the purpose of the Hague Service Convention in his ruling that a party cannot rely on R ule 11.27 to validate service when there was a failure to effect service pursuant to the Hague Service Convention : The purposes of the Hague Convention – as stated in the

preamble – are firstly “to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time,” and secondly “to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure”. For the second purpose, the Hague Convention sets an international standard for service which eliminates the need to determine the service process for any

particular dispute. Allowing courts to validate service which fails to comply with the international standard would undermine that purpose, as the Hague Convention would no longer be a comprehensive authority for service abroad involving the signatories to that Hague Convention . ... The scheme of the Hague Convention promotes cordiality in Canada’s international relations.

The Hague Convention accommodates fundamental differences between civil and common law systems. ... [U]nlike common law countries, some countries assert the principle of state control over judicial proceedings so their citizens may not be subject to foreign proceedings without the assent or participation of the state. In Japan, for example, it is illegal to serve foreign legal process privately. In addition to ensuring that a party acquires knowledge of legal documents ... the Hague Convention methods for service are applied to respect local differences in the amount of state control over judicial proceedings.

Thus, compliance with the Hague Convention is also a matter of international comity. ... The importance of international comity further supports the conclusion that rule 11.27 should not be interpreted as applying to rule 11.26(1)(b). ...

With one possible exception, the reported cases concluded that domestic rules cannot be used to circumvent the international purposes of the Hague Convention . [ 24 ] In another family law case, the Ontario Superior Court of Justice also concluded that, where it applies, compliance with the Hague Service Convention is mandatory: Wang v Lin , 2016 ONSC 3967 , at paras 73 to 75 and 96 . Whether there is an “access to justice” exception does not appear to be resolved: Xue v Zheng , 2018 ONSC 1979 .

International service resources [ 25 ] Undertaking international service under Rule 11.26 involves a consideration of certain aspects of each case and can be a complex process. The Court provides assistance to litigants on its website [1] , including: (

a) Service Outside of Canada Flow Chart, which is attached as Appendix A; (

b) Table of Contracting States to the Hague Service Convention , listing all the Hague Contracting States, the types of service they permit, and whether their Central Authority requires translation, though the Court notes an applicant should always refer to the most current information on the requirements for each Contracting State [2] ; (

c) Instruction Booklet for Service Outside of Canada (Hague Service Convention) [3] ; and (

d) several affidavit and order templates for service outside of Canada. Where the address of the intended recipient is “not known” [ 26 ] If service is to be undertaken in a jurisdiction to which the Hague Service Convention applies, and the address of the party who is the intended recipient (the recipient) is known, the Hague Service Convention applies: see Rules 11.26(2) and 11.34(1). [ 27 ]

Article 1 of the Hague Service Convention states that it does not “apply where the address of the person to be served with the document is not known”. If the recipient’s address is “not known”, the Hague Service Convention does not apply: see the Hague Service Convention

Article 1 and Rule 11.34(2)(b). In that case, Rule 11.26(1) applies. [ 28 ] Assessing whether a recipient’s address is “not known” is a critical element of the analysis because in some cases, such as this one, the answer determines whether the Hague Service Convention applies. [ 29 ] In Petrovic v Petrovic , 2019 ONSC 5838 , Mr. Petrovic sought to terminate child support for his two adult children. His former spouse, Ms. Petrovic, resided in Serbia, which is a contracting party to the Hague Service Convention . Affidavits of service filed by Mr. Petrovic stated that Ms.

Petrovic had been personally served in Serbia on two prior occasions. Ms. Petrovic did not file a response, was noted in default and the matter proceeded to an uncontested trial. [ 30 ] MacEachern J was satisfied on the evidence before her that child support for the two children should be terminated. However, before granting the final order in the absence of Ms. Petrovic, MacEachern J ordered Mr. Petrovic to file further evidence to satisfy the Court that service on Ms.

Petrovic complied with the Hague Service Convention or that it did not apply. [ 31 ] Although it appeared that service had been effected, it did not comply with the Hague Service Convention . Mr. Petrovic bore the burden to show, on a balance of probabilities, that the Hague Service Convention did not apply because Ms. Petrovic’s address was “not known”: Petrovic at para 10 . At para 11, footnote omitted, MacEachern J said that, in meeting this burden, Mr. Petrovic had to show he made reasonably diligent efforts to learn Ms. Petrovic’s address: ...

A party should not be permitted to avoid the application of the Convention by “closing its eyes” to the obvious. This approach to the

interpretation of

Article 1 of the Convention is consistent with jurisprudence in the United States. ... [ 32 ] MacEachern J found that Mr. Petrovic had not made reasonably diligent efforts to learn Ms. Petrovic’s address as there was no evidence he asked any persons likely to have contact with Ms. Petrovic for her address. Mr. Petrovic also failed to ask Ms. Petrovic for her address despite having contact with her earlier in the year. Further, Mr. Petrovic had personally served Ms. Petrovic on two prior occasions. He did not explain why Ms.

Petrovic’s address was not known when the affidavits of service appeared to provide her address. The court concluded that Ms. Petrovic’s address was ascertainable, and the Hague Service Convention applied. In the result, McEachern

J set aside the order noting Ms. Petrovic in default and ordered Mr. Petrovic to serve Ms. Petrovic in accordance with the Hague Service Convention . [ 33 ] In Del Guidice v Thompson , 2021 ONSC 903 , the serving party satisfied the Court that it had undertaken sufficient due diligence to demonstrate that the recipient’s address was not known. In a class action invasion of privacy lawsuit, the plaintiff applied for substitutional service against the defendant, Paige Thompson, a resident of the United States, which is a signatory to the Hague Service Convention . Ms.

Thompson, who was a computer programmer for Amazon, was alleged to have written a computer program that hacked computer servers owned by Amazon. The hack allegedly resulted in the theft of the confidential information of an estimated 6 million Canadian Capital One customers. [ 34 ] Counsel in class action investigated Ms. Thompson in an attempt to find a location where she could be served. Although counsel were unable to determine where Ms. Thompson resided, they learnt that in criminal proceedings she was represented by a public defender, Mohammad Hamoudi, and periodically by Brian Klein, a California lawyer.

In addition, as part of her bail conditions, Ms. Thompson had to reside within the Western District of Washington State and inform her attorney of her address and any change in address within one business day. [ 35 ] Attempts were made to locate Ms. Thompson without success. She no longer had any presence on the internet, and neither Mr. Hamoudi nor Mr. Klein would provide Ms. Thompson’s address. After an initial direction to make further investigations to locate Ms. Thompson, Counsel contacted the American prosecutors and Pre-Trial Services in Ms.

Thompson’s American proceedings, together with the Federal Bureau of Investigation. All three agencies declined to provide information. Counsel also engaged ABC Legal to find an address for service of documents on Ms. Thompson. ABC Legal is used by the U.S. Department of Justice to provide services for the “Central Authority” pursuant to the Hague Service Convention . [ 36 ] After the attempts to discover further information about Ms. Thompson’s location failed, an Order for Substitutional Service was granted, allowing service by email to Ms. Thompson’s attorney, Mohammad Hamoudi.

In Del Guidice , at para 8 , and relying on Petrovic , Perell J recognized that the Hague Service Convention does not apply where the address of the person to be served is not known.

See also Dufferin Communications Inc v Ducic & Fleming Fitness Inc , 2023 ONSC 4390 , at para 12 . [ 37 ] I agree with MacEachern J’s conclusion in Petrovic , at para 11 , that a party serving a recipient in a contracting state to the Hague Service Convention must make reasonably diligent efforts to learn the address of the recipient and cannot avoid the application of the Hague Service Convention by “closing its eyes” or, in my view, being willfully blind, to the obvious when submitting that the recipient’s address is “not known”.

Hague Service Convention service [ 38 ] Rule 11.26(2) requires service under the Hague Service Convention to be in accordance with Division 8 of the Rules : Rules 11.33 to 11.35. As noted above, at paragraph [23], Rule 11.27 should not be interpreted as applying to rule 11.26(1) (

b) and the Rules cannot be used to circumvent the international purposes of the Hague Service Convention . Noting in default after Hague Service Convention service [ 39 ] Rule 11.35(1) applies to obtaining default judgment where service has been effected in accordance with the Hague Service Convention . Issue 1: Was Ms. De Guzman to be served in a jurisdiction which is a contracting state to the Hague Service Convention ? [ 40 ] Mr. De Guzman’s affidavit evidence reveals that: (

a) the parties’ two children live with Ms. De Guzman’s mother in the Philippines; (

b) Mr. De Guzman’s mother was able to obtain a copy of Ms. De Guzman’s 2022 resume through an employer who Ms. De Guzman applied to, though there is no information as to whether Ms. De Guzman was employed with that employer; (

c) the mailing address included in Ms. De Guzman’s resume used in 2022 is an address in the Philippines and this address appears to be in the same area or city in which the parties’ children live with their maternal grandmother; (

d) Mr. De Guzman is in contact with at least one of the parties’ sons, who told Mr. De Guzman that Ms. De Guzman lives somewhere in Manila; and (

e) Mr. De Guzman obtained vague and unattributed information that Ms. De Guzman had relocated to the Middle East. [ 41 ] Considering Mr. De Guzman’s evidence in its totality, on a balance of probability, Ms. De Guzman is resident in the Philippines. [ 42 ] The Philippines is a contracting state under the Hague Service Convention . Accordingly, Ms. De Guzman would, in the normal course, be served in a jurisdiction which is a contracting state to the Hague Service Convention. Issue 2: Was Ms. De Guzman’s address “not known” to Mr. De

Guzman? [ 43 ] Mr. De Guzman said that he has reached out to Ms. De Guzman’s relatives and mutual friends in hopes of learning her location; however, the evidence discloses: (

a) a vague and unattributed comment that Ms. De Guzman has moved to the Middle East, which does not accord with the information Mr. De Guzman obtained from his son, who told Mr. De Guzman that Ms. De Guzman lives in Manila; (

b) that Mr. De Guzman’s mother is so closely associated with an employer to whom Ms. De Guzman applied for employment that she was able to provide a copy of Ms. De Guzman’s 2022 resume, but there is no information about his mother’s knowledge of Ms. De Guzman’s address or work location; and (

c) that Mr. De Guzman and Ms. De Guzman have a mutual friend who provided to Mr. De Guzman a copy of a Facebook Messenger exchange which indicates that, in December 2022, Ms. De Guzman received notice of a Family Docket Court appearance and was interested in ensuring her children were looked after; however, while this exchange suggests that Ms. De Guzman received notice of the Family Docket Court appearance, there is no evidence about how she received it, or what she received. [ 44 ] Mr. De Guzman’s affidavit evidence raises many questions but answers few. For example, has Mr. De Guzman contacted Ms.

De Guzman by email, regular mail, or Facebook to ask her for her address for service? All he said was that he sent an email to her that was not returned as undeliverable. Has Mr. De Guzman asked his mother-in-law, with whom his children live, for Ms. De Guzman’s address? How did Mr. De Guzman’s mother obtain a copy of Ms. De Guzman’s 2022 resume, and does she know her residential address or work location? Did Mr. De Guzman ask the mutual friend who provided the Facebook Messenger exchange for Ms. De Guzman’s address or to contact Ms. De Guzman on his behalf and ask for her address?

These are just some of the most obvious questions, none of which have been answered. [ 45 ] In light of the questions that are unanswered, Mr. De Guzman’s statement that he exerted all possible efforts to locate Ms. De Guzman, and that their common friends might know her contact information but will not disclose it to him, does not demonstrate due diligence. [ 46 ] Without more, I am not satisfied service on Ms. De Guzman is in order such that the application for a Desk Divorce can proceed. It is not clear that Mr. De Guzman has met his burden of demonstrating that Ms.

De Guzman’s address is “not known” because there is so little evidence about his due diligence. There is some evidence that Mr. De Guzman has been willfully blind to information about Ms. De Guzman’s address and methods of obtaining it. Without better evidence, it appears that the Hague Service Convention applies to Mr. De Guzman’s service of Ms. De Guzman. [ 47 ] In December 2022, Ms.

De Guzman indicated in the Facebook Messenger exchange that she was interested in the divorce proceedings and securing support for the children, so it is curious that months later she would now forgo that opportunity, if she received notice of the proceedings. This raises another red flag. [ 48 ] The importance of family law decisions on families themselves demands that affected adult parties have the opportunity to make representations to the Court, to the extent possible. Too often this Court is asked to consider a family law application in the absence of service on affected adult parties.

Proceeding without service on affected adult parties should be restricted to truly urgent cases and to the narrowest possible scope of relief. The Rules provide for service and, where applicable, substitutional service. The Rules cannot be ignored where it is expedient for a plaintiff. Issue 3: Did Mr. De Guzman’s service comply with the Hague Service Convention ? [ 49 ] The Substitutional Service Order permitted by service by email.

Article 11 of the Hague Service Convention allows a state to consent to methods of service within its boundaries other than a request to its Central Authority. However, there is no evidence to indicate that email is authorized under the laws of the Philippines. A similar conclusion was drawn in Metcalfe Estate , at para 63 . [ 50 ] Strictly adhering to service requirements imposed by the Hague Service Convention is aligned with the purpose of Division 8 of the Rules . Division 8 was added to the Rules on March 17, 2020 (AR 36/2020).

The purpose of adding Division 8 was to implement the Uniform Rules on Service in a Contracting State to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Uniform Rules ), which was adopted by the Uniform Law Conference of Canada (ULCC) in November 2015. [4] [ 51 ] The Uniform Rules were developed to assist in achieving consistency in civil procedure, in Canada, in the application of the Hague Service Convention . [5] In the introductory comment to the Uniform Rules , the ULCC notes: Because of the Convention’s exclusive character, any rule which would take precedence over these Rules should be amended.

For instance, a rule allowing parties to a contract to agree to service by a particular manner cannot allow parties to agree to a manner that would conflict with these Rules . Any rule allowing a court to permit a method of service in a Contracting State other than those provided by the Convention should also be amended. [ 52 ] Departure from the Division 8 and the Hague Service Convention service requirements would undercut this purpose as articulated by the ULCC and is not permitted by the Rules . [ 53 ] Mr.

De Guzman’s substitutional service did not comply with the Hague Service Convention, and it did not comply with the

Rules . Issue 4: Can a plaintiff serve a defendant in a divorce action? [ 54 ] While divorce is under federal jurisdiction, Parliament has adopted provincial rules of practice and procedure for proceedings under the Divorce Act , RSC 1985, c 3 (2 nd Supp): see Pitman v Mol , 2014 ONSC 2551 at para 22 . [ 55 ]

Part 12 of the Rules sets out the “Family Law Rules”.

Rule 12.7 states that: 12.7 Subject to rule 12.13 , a proceeding under the Divorce Act (Canada) must be started by filing a statement of claim for divorce in Form FL-1 and serving it in accordance with rule 12.55 . [ 56 ] A statement of claim for divorce must be served by leaving a copy with the individual being served, unless otherwise ordered by the Court: Rule 12.55(1). [ 57 ] Rule 12.55(1) states that certain specified documents must be served by leaving a copy with the individual being served, and prefaces that requirement with the words “unless the Court otherwise orders”.

That is not the case with Rule 12.55(2), which states that service of a statement of claim for divorce “ must be made by a person other than the plaintiff” [emphasis added]. [ 58 ] The regime for service under the Rules is a complete code. If service of commencement documents on an individual could be achieved by means other than personal service or recorded mail acknowledged by the addressee, there would be no need for substitutional service or an order validating service.

Nor would there be a reason for creating a distinction between service of commencement documents and other documents: see Al-Ghamdi v Alberta , 2017 ABQB 684 at para 320 , aff’d 2020 ABCA 81 , leave to appeal refused, 39389 (25 February 2021). [ 59 ] Rule 12.55(2) requires service of a statement of claim for divorce, personally or by method otherwise ordered by the Court, by someone other than the plaintiff. The use of “must” indicates that service by a person other than the plaintiff is mandatory.

This is also the case in Ontario for some family law matters: see Light-Morrow v Chaves , 2020 ONSC 2434 , at para 8 to 11 . [ 60 ] The move to a divorce regime where no fault divorce became an option is fairly recent and brought with it changes in all aspects of the process and the grounds for divorce: Prior to 1968 there was no federal divorce law in Canada. ... In most other jurisdictions in Canada [other than Newfoundland and Quebec], provincial law incorporated by reference the English Matrimonial Causes Act of 1857 ...

Some provinces enacted legislation allowing either spouse to seek a divorce on the basis of adultery. The provincial divorce acts continued in effect until 1968, when Parliament enacted the Divorce Act . The Divorce Act of 1968 introduced the concept of permanent marriage breakdown as a ground for divorce, while also retaining fault- based grounds for divorce, the most important of which were adultery, cruelty and desertion. The move away from purely fault-based grounds for divorce was controversial, and the compromise whereby fault and no-fault grounds were combined was continued in the Divorce Act , 1985.

The change recognized that marriages often end without a matrimonial offence being the cause of the breakdown and that the reliance on fault allegations in divorce proceedings can exacerbate and prolong what is already an unpleasant, expensive, and potentially harmful process.

Grounds for divorce were broadened to include one no-fault ground, in order to spare at least some couples this often painful process. [6] [ 61 ] One of the changes was the requirement that service be made by someone other than the plaintiff, which was introduced in 1986 by way of Rule 564(2) of the Rules of Court , AR 390/68 , as amended by AR 117/86, in response to the Divorce Act , RSC 1985, c 3 (2 nd Supp ). This requirement is now found in Rule 12.55(2). [ 62 ] The purpose behind Rule 12.55(2) has been described as twofold: (

a) to address the reality of domestic violence which could be a factor in the intended recipient not wishing to accept service directly from the plaintiff, avoiding service, or even taking significant efforts to not be found by the plaintiff, resulting the intended recipient party not being able to participate in the divorce proceedings; and (

b) to recognize that in potentially emotionally charged proceedings, the risk that one party to the proceedings might falsely swear that service was made personally on the intended recipient can be avoided by not permitting service by a plaintiff on a defendant. [ 63 ] As noted in Stevenson & Côté, Alberta Civil Procedure Handbook , vol 2 (Edmonton: Juriliber, 2024) at 12-83: Family law matters often involve very important status and rights, and sometimes defendants who are angry, vindictive, disorganized, or stressed [are] poor historians.

So careful personal service or substitutional service are important. [ 64 ] There is no option to permit service by the plaintiff directly on the defendant. Rule 12.55(1) requires personal service, unless otherwise ordered by the Court. Whether substitutional service is appropriate is decided on a case-by-case basis. However, whichever method of service is ordered, a plaintiff in a divorce action cannot serve the defendant; a third party must be engaged to undertake the service. [ 65 ] As a result of Mr. De Guzman personally emailing the Statement of Claim for Divorce to Ms.

De Guzman, he has failed to comply with Rule 12.55(2) and service on Ms. De Guzman is not in order.

Issue 5: Should the divorce be granted? [ 66 ] Section 11(1) of the Divorce Act , set outs the duty of the Court in divorce proceedings: (

a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it; (

b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and (

c) where a divorce is sought in circumstances described in paragraph 8(2)(b) [committed adultery, or treated the other spouse with physical or mental cruelty] ... [ 67 ] In relation to the first element, I find that there has been no collusion in relation to Mr. De Guzman’s application for a divorce. [ 68 ] In relation to the second element, I find that reasonable arrangements have not been made for the support of the children of the marriage. In his Affidavit sworn on August 8, 2023, Mr.

De Guzman states that his Federal Child Support Guidelines , SOR/97-175 (the Guidelines ) income in 2022 was $29,515 and that he proposes to pay child support as set out in the proposed Divorce Judgment and Corollary Relief order based on the Guidelines calculation. [ 69 ] The proposed Divorce Judgment and Corollary Relief provides for Mr. De Guzman to make payment of $456 per month to the children’s maternal grandmother and caregiver, which payment shall be paid to the Maintenance Enforcement Program (MEP).

However, there is no provision for the maternal grandmother to be notified that child support is being paid. [ 70 ] In addition, Mr. De Guzman proposes that the order for child support not be recalculated by the Alberta Child Support Recalculation Program (ACSRP). There is no information about what Mr. De Guzman does for a living and why participating in the ACSRP would be inappropriate.

In these circumstances, where the person receiving payment is in another country and wishes to participate in the ACSRP, it is my view that participation in the ACSRP should be the starting point, unless the payor provides evidence as to why it is not appropriate. [ 71 ] In relation to the third element, Mr. De Guzman relies on the breakdown of the marriage based on the parties having lived separate and apart for over one year and not on grounds under s 8(2)(

b) of the Divorce Act . Conclusion [ 72 ] Ms. De Guzman was served by email directly by Mr. De Guzman, contrary to Rule 12.55(2), and this service is not accepted as good and sufficient service. In addition, there are underlying concerns regarding the application of the Hague Service Convention to this case. Furthermore, I am not satisfied that that child support is adequately addressed. [ 73 ] Rule 12.50(5) states that, on considering the documents before it, the Court may: (

a) render any judgment to which the parties are entitled; (

b) direct an appearance before the Court; (

c) direct that further evidence be presented; (

d) direct the applicant to enter the case for trial on oral evidence; (

e) grant any other order or give any other direction that the Court considers appropriate. [ 74 ] Based on all of the above, I direct Mr. De Guzman: (

a) before his Desk Divorce application can be re-submitted to: (

i) re-serve Ms. De Guzman in a manner that is in accordance with the Hague Service Convention and the Rules , with all documents filed in the divorce proceedings and a revised Divorce Judgement and Corollary Relief Order, as described below in paragraph (c), together with a copy of these Reasons; and (ii) file an affidavit of service for such service; (

b) before his Desk Divorce application can be re-submitted to: (

i) serve the maternal grandmother, and caregiver, of the children, in a manner that is in accordance with the Hague Service Convention and the Rules , with all documents filed in the divorce proceedings, and a revised Divorce Judgement and Corollary Relief Order, as described below in paragraph (c), together with a copy of these Reasons; and (ii) file an affidavit of service for such service; (

c) when re-submitting his application for divorce, after service as set out in paragraphs (

a) and (b), above, to include a revised

Divorce Judgment and Corollary Relief Order which incorporates: (

i) service of a copy of the Divorce Judgement and Corollary Relief Order on the maternal grandmother and caregiver of the children as she is the proposed recipient of the child support; (ii) re-calculation of his child support payment, if requested by Ms. De Guzman, unless Mr. De Guzman provides evidence, which is satisfactory to the Court, that participation in the ACSRP is not appropriate in this case; and (iii) annual disclosure of income by Mr. De Guzman to both Ms. De Guzman and the maternal grandmother and caregiver for the children. Dated at the City of Calgary, Alberta this 6 th day of November, 2023.

E.J. Sidnell J.C.K.B.A. _______________________________________________________ Corrigendum of the Reasons for Decision of Justice EJ Sidnell _______________________________________________________ The following paragraphs have been replaced in their entirety with: [ 70 ] In addition, Mr. De Guzman proposes that the order for child support not be recalculated by the Alberta Child Support Recalculation Program (ACSRP). There is no information about what Mr. De Guzman does for a living and why participating in the ACSRP would be inappropriate.

In these circumstances, where the person receiving payment is in another country and wishes to participate in the ACSRP, it is my view that participation in the ACSRP should be the starting point, unless the payor provides evidence as to why it is not appropriate. [ 74 ] (c)(ii) re-calculation of his child support payment, if requested by Ms. De Guzman, unless Mr. De Guzman provides evidence, which is satisfactory to the Court, that participation in the ACSRP is not appropriate in this case; and Appendix A

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