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What does serving your documents mean in a family law court case?

Service or "serving your documents" means giving copies of your documents to your partner and any other people or organizations involved in your court case.

These documents are usually court forms and papers that support the information you give the court to prove your story and convince a judge to give you the orders you're asking for. Examples of documents include copies of bank statements and income tax returns.

The purpose of service is to let your partner know the steps you're taking and the information you're giving to the court.

Why is service important?

For the court to decide a case fairly, everyone involved has a right to:

  • know a case has been started
  • know the steps in the court process that are being taken
  • tell their side of the story

There are Family Law Rules that tell you what is needed at every step in a court case. Rule 6: Service of documents tells you how to serve your documents.

Documents can generally be served in 2 ways – by regular service or by special service.

You can usually serve your partner yourself. You can also get a family member or friend who is at least 18 years old, or a professional process server to do it for you.

A process server is an independent person who can serve your partner for a fee. To find a process server in your area, you can look in the telephone directory or go to www.canada411.ca and search for "process server".

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1. Learn about the 2 different ways to serve

Regular Service

Most documents in a family court case can be served by regular service.

To serve your documents by regular service means you, a family member or friend who is at least 18 years old, or a professional process server must do one of the following:

  • mail a copy to your partner or their lawyer
  • courier a copy to your partner or their lawyer
  • fax a copy to your partner or their lawyer
  • serve a copy by special service

Special service

To serve your documents by special service means you, a family member or friend who is at least 18 years old, or a professional process server must do one of the following:

  • give a copy to your partner directly, but you can't be the one to do this
  • leave a copy with your partner's lawyer
  • mail a copy to your partner, but your partner must send back a special form to confirm they received the document
  • leave a copy in an envelope addressed to your partner at your partner's home with any adult living with your partner, and then mail a copy of the documents to that address within one day

Special service is usually used for documents that start the case or documents that could lead to the person being served going to jail.

Safety issues

If you fear for your safety or the safety of any friend or family member when serving documents, you can ask the court staff to arrange for your documents to be served.

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2. Figure out how to serve your partner

The way you give your documents to your partner depends on which court form you’re serving. Rule 6: Service of documents tells you how each form or document has to be served.

For example, the following documents can only be served by special service:

You cannot serve these documents personally. This means you cannot give them directly to your partner.

For all other forms, if the Family Law Rules do not say which service you must use, you can choose between regular service or special service.

There is also a guide on how to serve documents.

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3. Find your partner

Usually you serve your partner at the last address they were living at. Or, you can serve their lawyer, if they have one.

Sometimes you can't serve your partner personally by giving them your documents directly. This might be because you don’t know where they currently live or because they purposely avoid getting served by not answering their door.

The court still expects you to take reasonable steps to serve your partner. For example, you can:

  • Wait for your partner outside their work address
  • Ask the post office for a forwarding address
  • Search online for a phone number or address
  • Use social media to find your partner
  • Contact people that may know where your partner can be found
  • Pay a private detective or skip-tracer to find your partner
  • Serve your partner at a place they go to regularly, for example, a restaurant or gym
  • use a substitute service, or
  • dispense with service.

If you still can't find your partner to serve them or if they are avoiding service, you can go to court and ask for permission to:

Substitute service

Substitute service is when you ask the court for permission to serve your documents in a different way. For example, by:

  • serving a family member
  • mailing a copy to your partner’s work address

The court may allow you to do this if you can show:

  • the steps you took to find your partner to serve them like:
    • what you did to try and find your partner
    • if you hired a process server and, if not, why not
    • how you tried to serve your partner
    • the last information you have about where your partner is
    • if you don't know where your partner is, any information you have about where they might be or the name and address of anyone who might be able to get in touch with them
  • that your partner will get to know of your documents if you serve them this way

Dispense with service

Dispensing with service is when you ask the court for permission not to serve your partner. The court doesn't make this kind of order often.

The court may allow you to do this if you can show:

  • you made reasonable attempts to find your partner to serve them
  • no kind of substitute service is likely to let your partner know about these documents
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4. Learn when service takes effect

You must follow the Family Law Rules that say the day by which you have to serve your partner with your documents.

Rule 3: Time tells you how to count time or days. Counting time or days is important because court staff won't accept your documents if you haven't followed the rules.

For example, some of these rules are:

  • an Application must be served within 6 months of being issued by the court
  • an Answer must be served within 30 days of getting the Application
  • a Reply must be served within 10 days of getting the Answer

When you serve your documents, counting starts on the day after the "effective" service day. The effective service day depends on how you served the documents. If you served them:

  • personally - service is effective the same day
  • by mail - service is effective 5 days after the documents are mailed
  • by courier - service is effective the day after the courier picks it up in the case of same-day courier service; or two days after the day the courier picks it up, in the case of next-day courier service
  • by fax - service is effective the day it is faxed as long as it is faxed before 4 p.m. on a day when the court is open
  • at your partner’s home with anyone who seems to be an adult and then mailed to that address - service is effective 5 days after the documents are mailed

For example, suppose your partner has to get your documents at least 7 days before your hearing. If you serve them personally on Monday, the first day you count is Tuesday and the 7th day is the following Monday. If the last day is a holiday, the time period ends on the next day that is not a holiday.

If you have more than 7 days to serve or file your documents or to confirm your court date, then Saturdays, Sundays, and holidays when court offices are closed are counted.

But if you have less than 7 days to serve or file your documents or to confirm your court date, then Saturdays, Sundays, and holidays when court offices are closed are not counted.

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5. Give proof of service

You must give the court proof that your partner was served with your documents.

You do this by having whoever served the documents on your partner fill out Form 6B: Affidavit of Service. This can be done at the court counter, with the help of the court clerk.

This form proves that your partner got a copy of your documents and knows that they have to respond to them.

Form 6B asks for:

  • The name of the person who served the documents
  • The name of the person or agency that was served
  • When the documents were served - the day, month, and year
  • Where the documents were served - house number, apartment number, street name, city, and province
  • What documents were served - Application, Answer, Reply, notice of motion, etc.
  • How the documents were served - personally, at place of residence, by regular mail, courier, or fax

This form must be sworn or affirmed. This means the person signing it is promising that the information in it is true. It is against the law to not tell the truth when swearing or affirming an affidavit.

The person must sign Form 6B in front of a commissioner for taking affidavits. There are commissioners for taking affidavits at the family courthouse.

File your Affidavit

Form 6B: Affidavit of Service then has to be filed with the court in your continuing record. You do this at the court counter, with the help of the court clerk.

There is a guide on how to file documents.

The continuing record is your court file that has all the important documents in your case. When you add a document to the continuing record, you also have to update the table of contents by listing each document you're filing.

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Reviewed: 
September, 2015