Serving court documents
Serving court documents or “service” is when you give a copy of all the documents in your case to the other person in your case, who is known as the other party.
You have to serve your documents to the other party because that person has a right to:
- know about a case that has started against them
- respond to claims made against them
- make their own claim
If you don’t give a copy of your documents to the other party and you don’t provide proof that you gave a copy of those documents to them (this is called an affidavit of service), your case might not be able to move forward.
You must file all of your documents at court in your file, which is known as your “continuing record.”
Types of service
There are a number of ways you can serve documents to the other party or their lawyer. The main four are covered below. For a full list, please check Rule 6 of the Family Law Rules.
When you’re starting a case or changing a final order
This process is known as special service. It is used when you have someone else give a copy of the documents in person:
- to start a family case (this is called an application) or change a final order made in a family case (that is called a motion to change)
- because what you are trying to do could lead to the other party going to jail e.g. a notice of contempt motion, a summons to witness, or a notice of motion or notice of default hearing
For special service, you cannot serve the documents unless you have a court order allowing you to. The documents have to be given by someone who is at least 18 years old or by a professional process server in person to either the other party (this is for opening a case, changing a case or for documents that could lead to imprisonment) or their lawyer of record (this is only for opening a case or changing a case).
To find a local process server, visit www.canada411.ca and search for “process server.”
Whoever serves must do it in-person and by hand-delivering a copy to the other party or their lawyer. This is called personal service.
When a case has already started
This process is called regular service. Most documents fall into this category and these documents in a family court case can be served by you or someone who is at least 18 years old or a professional process server.
You can do this by:
- mailing copies to the other party or their lawyer of record
- email, if you have permission from the other party to do so
When you can’t find the other person
If you can’t find the other party or they are avoiding you, a judge may let you serve the documents in another way. This process is called substituted service. Some examples include:
- sending a copy to a relative of the other party they are close to
- mailing the documents to the other party at their place of employment
- sending copies to the other party electronically
If you give a copy of the documents in a way that’s not mentioned in the rules, but the other party still got the documents, the judge may say okay to this or ask you to send the documents again according to the Family Law Rules.
When service isn’t required
In rare cases, a judge may say that service isn’t required because you’ve used all reasonable efforts to find the other party to serve them and haven’t had any success and there are no other methods that would likely work.
Before a judge will give this order, they have to be satisfied that there is no other way to reach the person and may even order that ads be placed in the newspaper to try and reach the other party.
When the other party lives outside of Ontario
If the other party lives in one of the countries listed in the Hague Service Convention, you can serve them through the Central Authority in Ontario, if you know their address Please visit the Ministry of the Attorney General’s site for more information.
Steps for service
Organize all the documents that you will be filing at court, including any blank forms needed, and write down a list of what is being served. The original documents will be filed at court and copies will be given to the other party. Please remember that when a copy of these documents are sent to the other party, they will see everything on the document—including contact information. If you have safety concerns, please let the court clerk know. In some cases, they can help to arrange for service.
Find out if you must serve a copy of the documents to the other party directly or to their lawyer. If the other party has a lawyer of record (the lawyer whose name is on the court documents), serve it to the lawyer.
Find out how you are supposed to serve the documents. For example, is it special service or regular service? Find out whether you can serve the documents yourself or if has to be done by someone else.
Check Rule 3 of the Family Law Rules to calculate how much time you have for when the documents must be served to the other party and filed with the court. Make sure you look at the rule for whatever it is you’re serving. For example, if it’s a Form 8 application that you’re serving, look at Rule 8 to find out how much time you have to serve that document.
Provide proof to the court that the other party was served with copies of all the documents that you filed with the court. This is called the affidavit of service. The person who served the documents has to complete Form 6B: Affidavit of Service and sign it in front of a commissioner. There are commissioners at the courthouse. Just ask the clerk at the family courthouse where you can find one.
Make sure you bring photo ID with you to show the commissioner.