Federal Report on Private International Law 1996

1996 Ottawa ON

Civil Section Documents - Federal Report on Private International Law

INTRODUCTION ADVISORY GROUP ON PRIVATE INTERNATIONAL LAW

CIVIL JUSTICE COMMITTEE

STATUS CHART OF CANADIAN ACTIVITIES IN PRIVATE INTERNATIONAL LAW

LATEST DEVELOPMENTS IN PRIVATE INTERNATIONAL LAW

THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

UNCITRAL

UNIDROIT

WORLD BANK REGIONAL ORGANIZATIONS
Organization of American States

BILATERAL CONVENTIONS ON MUTUAL LEGAL ASSISTANCE
Canada-United Kingdom
Canada-France
Canada-Egypt

CONCLUSION


INTRODUCTION

Since the last meeting of the Uniform Law Conference, the Department of Justice continued its efforts toward harmonizing and achieving uniformity in private international law. The following pages summarize our activities within international organizations such as the Hague Conference on Private International Law, Unidroit and the United Nations Commission on International Trade Law (UNCITRAL) as well as regional organizations such as the Organization of American States (OAS) in addition to our activities at the bilateral level.

The Department of Justice consults regularly with the provinces and the territories, with other interested federal Departments, and with the private sector on various conventions adopted by these organizations and on instruments being developed under their auspices. The Department of Justice also benefits from the views expressed by its Advisory Group on Private International Law.

ADVISORY GROUP ON PRIVATE INTERNATIONAL LAW

The Advisory Group on private international law provides the Department of Justice with close and continuing guidance in matters of provincial interest that are under consideration by organizational organizations or as part of bilateral activities in which Canada is involved. The Group is presently composed of five provincial representatives: one from Saskatchewan representing Manitoba, Alberta, and Saskatchewan; one from Prince Edward Island representing the Atlantic provinces; and one from each of British Columbia, Ontario and Québec. A private practitioner representing the International Law Section of the Canadian Bar Association also participates in the Group as an observer.

The Group met on one occasion since last August in November 1995 and held a conference-call in June 1996. The discussions gave rise to a very productive exchange of views on various private international projects and conventions.

CIVIL JUSTICE COMMITTEE

The Civil Justice Committee, which is composed of provincial, territorial, and federal representatives that report to the Deputy Ministers of Justice, was very active last year in promoting private international law activities, in particular in the field of recognition and enforcement of judgments. As a result, more visibility was given to the work of the Uniform Law Conference in that area as well as to the recommendations aimed at possible law reform in the aftermath of the Department of Justice Law Reform Project.

STATUS CHART OF CANADIAN ACTIVITIES IN PRIVATE INTERNATIONAL LAW

In an effort to better inform provinces, territories and interested groups on developments in private international law in Canada, the Department of Justice of Canada prepares a Status Chart of Canadian Activities in Private International Law. This Chart is intended to give updated information on conventions in private international law to which Canada is a party or to which it is currently considering acceding. A copy of the Status Chart is attached.

LATEST DEVELOPMENTS IN PRIVATE INTERNATIONAL LAW

The main event of the past year was the signing on June 10, 1996, of the Convention between Canada and France on the Recognition and Enforcement of Judgments in Civil and Commercial Matters and on Mutual Assistance in Maintenance.

The text of the Convention, the negotiations of which started in 1994, was finalized at the last negotiations session that was held in May 1996.

THE HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW

The Hague Conference on Private International Law, of which forty-three States are members, organized three meetings this year. A member since 1968, Canada participated in the following activities: the third meeting of the Special Commission on the revision of the Convention on the Protection of Minors from September 11 to 22, 1995; the Special Commission on Maintenance Obligations from November 13 to 17, 1995; and the Special Commission on the question of the recognition and enforcement of foreign judgments in civil and commercial matters from June 4 to 7, 1996.

Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption

The Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, which was finalized on May 29, 1993, came into force on May 1, 1995. It now applies to Burkina Faso, Costa Rica, Cyprus, Ecuador, Mexico, Peru, Poland, Spain, Romania and Sri Lanka. It will become applicable to the Philippines on November 1, 1996. Fifteen other States, including Canada, have signed the Convention: Brazil, Colombia, Finland, France, Ireland, Israel, Italy, Luxembourg, the Netherlands, Norway, Switzerland, the United Kingdom, the United States and Uruguay.

Canada's signing the Convention on April 12, 1994, was the first step in a process of having the Convention apply to Canada. Ratification by Canada in 1996 is under consideration since implementing measures have now been adopted in four provinces: British Colombia, Manitoba, Prince Edward Island, Saskatchewan. The ratification will proceed as soon as the required minor changes to the Immigration Regulations have been approved.

Decisions will have to be taken in the other jurisdictions on how to implement the Convention. Implementation will be facilitated thanks to the adoption by the Uniform Law Conference in 1993 of the Uniform Intercountry Adoption (Hague Convention) Act. Department of Justice officials along with other federal officials from the National Adoption Desk and the Department of Citizenship and Immigration have met with provincial authorities to follow up on the implementation process.

The Convention represents a satisfactory compromise between countries of origin and receiving countries in matters of adoption. It will increase the legal safeguards to guarantee that intercountry adoption takes place only when in the best interests of the child. It will establish a framework for State cooperation to ensure respect for those safeguards and will also provide for the recognition of adoptions made in accordance with the Convention. Overall, the Convention will add certainty and uniformity to the adoption process while allowing for flexibility and timeliness in its application. It is noteworthy that the Convention will change existing Canadian practices in the field of international adoptions.

Convention on the Law Applicable to Trusts and their Recognition

The Convention on the Law Applicable to Trusts and their Recognition seeks to make uniform conflict of law rules with respect to trusts and to solve problems associated with the recognition of trusts, particularly in civil law countries. It now applies to the Netherlands in addition to Australia, Canada, Italy, Malta, the United Kingdom and Canada, bringing the number of parties to six. It is worth noting that two such parties, Italy and the Netherlands, are civil law countries.

The Convention came into force for Canada on January 1, 1993, for those provinces which had adopted implementing legislation based on the Uniform Act adopted by the Uniform Law Conference in 1987, namely Alberta, British Columbia, New Brunswick, Newfoundland, and Prince Edward Island. Since then, Manitoba and Saskatchewan have passed the necessary implementing legislation. As a result, the Convention was extended to those provinces in 1994. Other jurisdictions have been encouraged to adopt necessary legislation with a view to having the Convention apply throughout Canada in the near future.

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters

This Convention has been in force in Canada since May 1, 1989, and now applies in thirty-four States. It seeks to facilitate the service of documents by establishing certain rules for service of documents abroad and by establishing a system of Central Authorities in each jurisdiction to receive documents for service. It should be noted that the Central Authority system is not the only means of effecting service. Other means, including those used before the Convention came into force, such as the use of postal service, may be available if the State in which the documents are served recognizes them.

In Canada, Central Authorities have been designated in each province and territory. At the federal level, the Legal Advisory Division of the Department of Foreign Affairs and International Trade serves as the Central Authority and is monitoring the application of the Convention with the input of provincial and territorial Central Authorities. The rules of practice in all provinces and territories as well as at the federal level have been amended to comply with the Convention.

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters

This Convention, which is not yet applicable to Canada, applies to twenty-eight States, including Australia, the United Kingdom, and the United States. The purpose of the Convention is to facilitate the transmission and enforcement of letters rogatory by competent authorities through the establishment of Central Authorities in each State party to the Convention.

Consultation on the desirability of Canada's acceding to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters was undertaken in 1990. So far, the implementation of this Convention has received the support of six jurisdictions while two provinces are still reviewing the matter. Three jurisdictions have not yet responded to our consultation and one has received clarification on questions regarding the impact of the Convention on existing rules. On the basis of discussions by the Advisory Group in 1994, it was concluded that, although the Convention would not be costly to implement in Canada, the advantages to Canada in acceding to it were far from clear. Contact has been made with the Canadian Bar Association to seek input from practitioners on the problems they face when attempting to obtain evidence abroad. The prospect of a possible new multilateral convention on judgments may also add some impetus on the need to consider acceding to the Convention.

A final consultation with a view to finalizing the Canadian position regarding possible accession to the Convention will be undertaken as soon as a response is received from the bar. There is no federal State clause in the Convention; therefore, the unanimous support of the provinces and territories for its implementation must be obtained in order for Canada to become party to it. It is worth noting that the implementation of the Taking of Evidence Convention would supplement the application of the Service Convention already in force in Canada.

Convention on the Law Applicable to the Succession to the Estates of Deceased Persons

This Convention determines the law applicable to the estates of deceased persons where more than one State is concerned. The Convention's main feature is the principle of unity whereby the whole succession of an estate is governed by one law.

Canada actively participated in the negotiation of the Convention on the Law Applicable to the Succession to the Estates of Deceased Persons, which was adopted in 1988. Professor Donovan Waters from the University of Victoria was appointed Special Rapporteur and Professor Talpis from the Université de Montréal was the expert advisor to the Canadian delegation.

In 1994, consultation regarding possible support in Canada for the implementation of this Convention was suspended. Different positions had been expressed on whether Canada should become a party to the Convention: four jurisdictions expressed their support for the implementation of the Convention while others wished to consult with their local Bars or were not yet prepared to support the implementation of the Convention. In Ontario, the CBA-O Section on Trusts and Estates expressed support for the Convention. Further study of the Convention has been undertaken to answer questions raised as to its interpretation. Consultation may be reactivated pending decisions on work priorities in private international law matters.

Convention on the Civil Aspects of International Child Abduction

The Convention on the Civil Aspects of International Child Abduction was the first Convention of the Hague Conference ratified by Canada. It establishes procedures to ensure the prompt return of children wrongfully removed from their State of habitual residence or retained outside of that State. Each State party is required to establish a Central Authority to deal with requests for the return of abducted children or for assistance in the exercise of access rights. The Convention is in force in all provinces and territories.

As of June, 1996, forty-five States from almost all continents are party to the Convention. The most recent States to become party to the Convention are Colombia, Cyprus, and Zimbabwe: their accessions have yet to be accepted by Canada so as to have the Convention applied between them and Canada.

There is a Central Authority under the Convention in every province and territory within the Ministry of the Attorney General or the Department of Justice. The federal Central Authority is located in the federal Department of Justice. A transportation programme facilitates the repatriation of children who have been abducted by a parent; the programme operates throughout Canada and as well as internationally. The programme is coordinated by the R.C.M.P. Missing Children's Registry, in cooperation with the national airlines and Via Rail. A second meeting of all Central Authorities in Canada took place in Toronto in October 1995.

The Convention, which has been incorporated into Canadian law, has been invoked in several cases. The first of these cases to be heard by the Supreme Court is Thomson v. Thomson, [1994] 3 S.C.R. 551, in which the Supreme Court upheld an order for the return of a child illegally removed by his mother from Scotland to Canada.

The Hague Conference's Work in Progress

Revision of the 1961 Convention on the Protection of Minors

Canada participated in the third meeting of the Hague Conference Special Commission, held from September 11 to 22, 1995, which is mandated to review the 1961 Convention on the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors. This project constitutes the priority item on the 1993-96 work programme of the Hague Conference with a view to submitting a revised Convention for the agreement of its member States at the Eighteenth Session in October 1996.

The task of the Special Commission was to address problems in matters related to the protection of the person and the property of the child in the context of conflicts of laws and jurisdiction. It is hoped that the revised Convention, unlike the 1961 Convention, will attract common law countries as parties. Consideration is also being given to the rights of the child as embodied in the 1989 United Nations Convention on

the Rights of the Child as well as to the relationship between the proposed revised Convention and other Hague Conventions affecting children's issues. As a result of the discussions of the September 1995 meeting, a more complete draft convention, tentatively entitled Draft Convention on the Protection of Children, was developed.

The draft Convention gives primary jurisdiction to the authorities of the State of habitual residence of the child to take measures directed at the protection of the person or property of the child. These authorities may on certain conditions, including when in the best interest of the child, transfer their jurisdiction to authorities of other States on the basis of subsidiary grounds. It also provides for the recognition and enforcement of such measures, such as custody orders, as well as for the establishment of cooperation among States' authorities in the application of such measures.

The draft will be reviewed and finalized at the Eighteenth Session of the Hague Conference to be held in October, 1996. The federal Department of Justice has undertaken a major consultation with interested authorities and organizations on the basis of relevant reports and material in order to prepare the Canadian position to be presented at the Eighteenth Session.

The Special Commission was also mandated to look into the matter of the extension of the revised convention to incompetent adults. For lack of time this task was not completed. As recommended by the June 1995 Special Commission on General Affairs and Policy, the drafting of a convention on the protection of incompetent adults could be considered as the second priority item of the next 1996-2000 work programme of the Hague Conference. A decision on the matter will be made by member States at the Eighteenth Session in October 1996.

Recognition and Enforcement of Foreign Judgments

A second meeting of the Special Commission was held from June 4 to 7, 1996, to study further the problems of drafting a new multilateral convention on the questions of jurisdiction and of recognition and enforcement of foreign judgments in civil and commercial matters. The meeting was held at the recommendation of June 1995 Special Commission of the General Affairs and Policy of the Hague Conference.

Discussions focused on the issues of forum non conveniens and the practice of awarding punitive damages. Canada, along with Australia, the United Kingdom and the United States, were asked to produce information documents on these questions. A number of additional points, such as the grounds for refusal of recognition and enforcement in connection with the possibility to review the original judgment, and the scope of application of the future convention, which were already covered at the first meeting of the Special Commission on Judgments that was held in June 1994, were also reviewed. The Conclusions of the Special Commission will be distributed once they are available.

The question of the recognition and enforcement of judgments in civil and commercial matters was studied by the member States of the Hague Conference as part of its 1993-1996 work programme. The Special Commission on General Affairs and Policy of the Hague Conference recommended that this work be continued with high priority within the next 1996-2000 work programme. Canada is supportive of this recommendation given that the project represents an opportunity to harmonize Canadian rules with principles of recognition and enforcement of judgments worldwide.

Law Applicable to Civil Liability for Environmental Damages

This project constitutes the third priority item on the current work programme of the Hague Conference. After having been briefly examined by the June 1995 Special Commission on General Affairs and Policy, it was recommended that the matter be kept on the agenda of the next work programme with a lower priority.

Special Commission on Maintenance Obligations

As part of the current work programme of the Hague Conference, a meeting of a Special Commission to review the application of existing conventions on maintenance obligations was held from November 7 to 11, 1995. These conventions are the 1956 and 1973 Hague Conventions on the Law Applicable to Maintenance Obligations and the 1958 and 1973 Hague Conventions on the Recognition and Enforcement of Decisions relating to Maintenance Obligations as well as the 1956 New York Convention on the Recovery Abroad of Maintenance developed under the auspices of the United Nations.

Although Canada is not party to any of these conventions, it was represented at the meeting. Canada took this opportunity to distribute an information document prepared by the Ontario Reciprocity Office on the system of Reciprocal Enforcement of Maintenance Orders (REMO). The Special Commission recommended to the Eighteenth Session that other meetings of the Special Commission on Maintenance Obligations be convened and that a list of state authorities be prepared and forms be drafted to assist in the application of the existing conventions particularly the 1956 New York Convention. Interested authorities have received the report of the Canadian delegate and will soon obtain a copy of the Conclusions of the Special Commission.

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