Answer: All court documents prepared by a woman in her case must be served on her former partner before the case can move forward. Different documents and circumstances require different kinds of service. The rules about document service can be found in the Family Law Rules at Rule 6.
Where both parties are represented by lawyers, the lawyers have responsibility for serving the documents on one another, and then each lawyer meets with her/his client to review the documents and prepare any responding documents that may be required.
If a woman is unrepresented, she must make her own arrangements to serve the documents. If her former partner is represented by a lawyer, the woman would have the documents served on his lawyer. If he is unrepresented, he will have to be served directly.
Proper service of documents is very important because it is the only way the court can know that everyone involved in the case knows there is a case going on, knows what is happening next in the case, knows what information and evidence is going to be presented to the court and has time to put their side of the story together for the court.
This is why, regardless of what kind of service is required for a particular document, once a woman serves it, she must sign an Affidavit of Service in which she swears or affirms that the documents were served and how. This Affidavit is prepared and filed in the court record after every set of documents is served. Once the woman has completed the affidavit, it must be sworn or affirmed in front of a Justice of the Peace, a notary public, a lawyer or someone designated as a Commissioner for Oaths. Most family courts have at least one such person who can commission affidavits.
Documents that require what is called regular service can be sent to the person’s lawyer or the person himself by mail, courier or fax.
Only people who are at least 18 years old can serve court documents.
Sometimes, a woman can serve her former partner herself, but not always. The following documents cannot be served by a party in a family court proceeding:
- Forms 8/8A: Application and Application for Divorce
- Form 15: Motion to Change
- Form 15A: Change Information Form
There are other less frequently used documents that cannot be served by one party on the other. For more information about this, check Rule 6.
If you are working with a woman who needs to serve any of these documents on her former partner, she can ask a friend or family member to serve him or she can hire a process server. Process servers can be found in the yellow pages of the telephone book or at www.canada411.ca.
If the woman cannot serve the document directly because she does not know where he is, she may be able to bring a motion for what is called substituted service. She would ask the court to make an order allowing documents to be served through some other means. For example, if she knows that her former partner is in touch with members of his family and she knows where to find them, she could ask the court for an order permitting her to serve one of them. Or, she could ask for an order allowing her to serve his employer. In one recent decision, a family court judge permitted a party to serve the former partner via Facebook, because that was the only way she knew how to find him.
Before a woman can bring a motion for substituted service, she needs to make serious efforts to find her former partner. She must:
- Go to his last known address (both home and work) to see if he is at either location
- Contact his friends and relatives to see if anyone can tell her where he is
- Print out a Canada 411 web/internet search against her former partner’s name for the city in which he last lived and follow up on any matches to determine whether they are her former partner
- Do a Ministry of Transportation search through a process server, if her former partner has a driver’s licence.
The woman should carefully document each of these efforts by recording dates, what she has done, names of people she has contacted and any information she has gathered.
At this point, she can bring a motion for substituted service by preparing a Form 14B Motion Form and a Form 14A Affidavit, in which she provides the details of what she has done to try to find her former partner as well as the form of substituted service she is asking the court to permit.
In very extreme circumstances, the court may make an order dispensing with service, but the evidence needed to support such an order is significant. More commonly, the judge will order service on another person who is then expected to bring the documents to the attention of the former partner.
The most important consideration for a woman in making decisions about how to serve family court documents must be her safety and the safety of family members or friends she may consider asking to assist her.
You can assist her in thinking this through as part of the ongoing safety plan you are supporting her to make.
A woman should never put herself in a position where she is exposed to her former partner if she has any concerns at all that he might react to the documents she is serving on him. In most cases, this will mean she should never serve him directly. When she does not have family or friends who can assist her, she can hire a process server. In cases where the woman’s financial situation is extremely limited, the court may be able to assist her with effecting service.