The joy of working with clients with multi-jurisdictional assets and families can be dampened by the frustrations triggered by working with authorities in those jurisdictions for the timely administration of estates. Having proper authentication of key estate administration documents – birth and death certificates, divorce judgments, probate certificates come to mind – can be enough to bring an experienced practitioner to tears (happened to a friend, not to me) – and there is good news for those of you with multi-jurisdictional practices.
Effective January 11, 2024, the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (1961 Apostille Convention) (the “Convention”), entered into force in Canada, making Canada one of 126 Contracting Parties to the Convention, established under the mandate of the Hague Conference on Private International Law, or the “HCCH” as it is known by its friends. The Convention was developed to provide a standardized way to have certain government-issued documents authenticated for recognition among participating states.[i]
When a friend mentioned the entry into force of the Convention in a group text chain early last Monday morning (it is not a cool text chain, it is a very nerdy text chain), once we had clarified that the Convention has nothing to do with the Apostles of Jesus (those 12 men of New Testament fame), or the Apostles of Hustle (a now-defunct Toronto band formed by Andrew Whiteman of Bourbon Tabernacle Choir and Broken Social Scene fame) – I decided to dig in and figure out exactly why my law-nerd friend was so excited. Here is what I discovered: she was right to be excited!
What it means:
Turns out that an “Apostille” is a standardized certificate used for the authentication of certain public documents. The Convention was enacted to facilitate the use of public documents abroad, with the issuance of an Apostille certificate by a “Competent Authority” – in Canada the competent authorities include Federal, Provincial and Territorial governments. The Apostille system replaces what we know to be a cumbersome and often frustrating process of having public documents recognized abroad, and facilitates the circulation of public documents for individuals, families and businesses.
At present there are 126 contracting parties – among them are countries where many Canadian families and businesses have ties, including Chine, the United Kingdom and the United States. In addition, there are several countries that I have personally visited, including Mexico, France, Norway, Denmark, Iceland and places on my bucket list, such as Mongolia and Sweden.[ii]
What can I get Apostille-ized
Examples of documents you for which you can obtain an apostille include vital statistics documents including birth and death certificates, business registry documents, court-issued documents such as orders and judgments. There may be limits on whether the documents qualify for apostilization, for example, in Ontario court orders and judgments must have been issued within the past 22 years.
There may also be limits on whether one may obtain an apostille for translated documents. In Ontario, there is a stipulation that any translated documents must be issued within Canada, notarized by an Ontario notary public and accompanied by a translation issued by a Certified Canadian Translator.[iii] Identify the competent authority for a document you need authenticated, and check with that province or territory’s site (discussed below) to identify any applicable limitations.
In general, you will not be able to obtain authentication for documents (even if they are notarized):
- commissioned by a commissioner for taking affidavits,
- documents issued outside of Canada, religious documents such as baptismal certificates,
- documents that have been previously authenticated (i.e. a copy of a documents authenticated by a consulate or embassy), and
- “pseudo” legal documents, defined as “legal sounding documents stating false rules that claim to be law”.
A funeral home-issued “proof of death” will not be apostillable. To have proof of death authenticated, you will need the polymer death certificate issued by the provincial (or territorial) government of your region.
Where to go:
The destination for documents to be authenticated depends upon where the document was issued. Global Affairs Canada maintains an accessible site for locating updated information on authentication services, with links to the applicable destination to send requests. Documents issued by the Government of Canada are submitted to Global Affairs Canada. Documents issued or notarized in the following provinces and territories also go to Global Affairs Canada: Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island and the Yukon.
For documents issued in Alberta, British Columbia, Ontario, Quebec and Saskatchewan, documents are submitted to those provinces’ Competent Authority. The Global Affairs site has links to each of those Competent Authorities, as well as to their own authentication services.[iv]
What to do:
I decided to walk myself through the process for having a death certificate authenticated in Ontario to report to you on whether the process is likely to reduce any of you to tears. I can report that no tears were produced in identifying the process of obtaining an Apostille for a death certificate on this writer’s part.
In Ontario, the Competent Authority which issues Apostille certificates is the Official Documents Services (“ODS”), part of the Ministry of Public and Business Service Delivery of Ontario.[v] The landing page is easy to follow, and sets out what you need to do to obtain an Apostille.
If I were to require an Apostille for my polymer death certificate, I would first submit an online Document Authentication Request through the ODS portal then deliver a notarial copy of the document to the ODS along with payment of $16, payable to the Minister of Finance (if paying by cheque), either in person or by mail. Documents cannot be submitted electronically. The ODS staff then compare the signature and seal or stamp on the document against the information on file from the applicable notary public or the signing authority.[vi] The name and seal of any notarized document must be identical to those on file with the ODS and the documents must be provided to the ODS in hard copy. The ODS does not validate the contents of documents.
Documents submitted by mail are sent, along with the online service request number or completed request form and payment, to Official Documents Services, 222 Jarvis Street, Main Floor, Toronto, ON, M7A 0B6. As of November 2023, you can also book an appointment or try you luck by showing up at the Jarvis Street address or at the Service Ontario offices in Ottawa, Sault St. Marie, Windsor and Thunder Bay. The Ministry website suggests that turn around for mail-in applications is about 15 days, assuming that the documents are in order.
I remain curious about why it took 63 years for the Convention of 1961 to come into effect in Canada, but I am glad that it has.[vii] The next time my friend needs an official copy of a birth or death certificate, a probate certificate or other qualifying document, you now have access to a simple system for authentication, and unlike me, er, my colleague who was brought to tears by a well intentioned but hard-to-please solicitor on the Isle of Man, you will have access to a straightforward system for authentication.
Jane Martin, Estate and Trust Consultant Team Lead, Scotiatrust
[i] More on the HCCH can be found here: https://www.hcch.net/en/home and further details about the Convention here: https://www.hcch.net/en/instruments/conventions/specialised-sections/apostille
[ii] A full list of the Contracting Parties is maintained by the HCCH at: https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
[iii] Where a certified translation is required, engage a translator who is certified by a recognized translation service, such as the Association of Translators and Interpreters of Ontario. The documents translated will then be accompanied by a declaration of accuracy.
[iv] The landing page for Global Affairs’ overview of the new process for document authentication, which includes links to provincial websites, a list of signatories to the Convention, and other useful information is found here: https://www.international.gc.ca/gac-amc/about-a_propos/services/authentication-authentification/apostille-convention.aspx?lang=eng
[v] The home page for document authentication in Ontario sets out everything you need to know to obtain Apostille certificates in Ontario: https://www.ontario.ca/page/authenticate-document-use-outside-canada. Use the links from the Global Affairs website in note iv to access the proper contact for other provincial and territorial services. The Ontario ODS site does not yet contain the updated links.
[vi] This stands as a good reminder to notaries to ensure that you are a notary in good standing and that you signature matches the signature you submitted to the government lo those many years ago when you registered as a notary.
[vii] I am also quite chuffed about the number of words I was able to invent in one short blog post. To wit: apostille-ized, apostillable, apostilization? Not real words.