As clients are becoming more and more mobile, it is common to have assets all over the world which leads to multi-jurisdictional estate administration on the mobile client’s death or incapacity. There are international treaties that try to make things easier and connect all these jurisdictions. One of these international treaties is the Hague Apostille Convention, which creates a universal process of authenticating foreign documents.
There are 115 signatory countries to this Convention – however, Canada is unfortunately not one.
So, what happens when we need to have one of our documents authenticated for a legal purpose in a foreign jurisdiction? In Canada, as in other non-signatory jurisdictions, we must follow a process that verifies the signatures on certain documents in order to confirm their validity for other jurisdictions. This process is referred to as authentication and legalization, which is usually a 3-step process.
Step 1: Notarize the Document
The first step is to have a notary prepare a notarial copy of the original document you are looking to authenticate. The notary, after viewing the original document itself, is able to certify and attest that a document is a true copy of the original. This has the same validity as the original document within the notary’s own jurisdiction.
There are several private notary services that can help with this step. Along with private services, many lawyers are also notaries.
However, if the document is an original government-issued one, such as a provincial death certificate, a notarial copy will not be necessary.
Step 2: Authenticate the Document
After you have the notarial copy of the document, the next step is to take this document to the office of your provincial or territorial authentication services to have it authenticated.
In Ontario, the notarial copy is sent to Official Documents Services (the ODS). The ODS can authenticate notarized or commissioned documents. It does this by comparing the signature and seal on the notarial copy with the information on file with respect to the notary public. Once approved, a Certificate of Authentication is provided, which is attached to the notarial copy. This Certificate confirms that it is an authentic copy by a notary who has been duly appointed in Ontario.
In some limited cases, a document does not need to be authenticated before it is legalized, but it ultimately depends on the requirements from the foreign jurisdiction.
Step 3: Legalize the Document
The final step varies depending on the foreign country in which the document is required. It typically involves submitting your authenticated document to that country’s consulate or embassy, together with any other information they may require. Once received and reviewed, assuming everything is in order, the consulate or embassy will certify the document and formally legalize it.
What if there is a second foreign country that needs the original document? Well, then you have to go through this process again, finally legalizing it with the embassy or consulate of the second country.
A few words of advice: Before starting the process, it is always recommended to work backwards and contact the foreign country’s consulate or embassy to confirm what information and documentation they will require to legalize the document. It could be that the consulate in your city doesn’t offer this service, meaning you will have to reach out to the embassy in Ottawa. You will also need to know what fees are charged for these services. Confirming what is required from the beginning avoids any potential delays or issues at the last step.
You should also check to see if an authenticated and legalized document is needed in the other jurisdiction. For example, many U.S. states will accept a plain notarial copy of documents from Canada.
One thing to keep in mind when going through this process is that you are dealing with several government offices, so you should be prepared to wait. It could take several weeks to authenticate the document, and then another several weeks to legalize. It could take even longer if any documents need to be translated. There also are costs associated with these services, although they are usually nominal.
Until Canada signs the Hague Apostille Convention, these three steps are needed to have your Canadian documents recognized in another country. Perhaps it’s time for more governments, including ours, to recognize the value of this Convention.
— Stephanie Battista