How Do I Personally Serve Someone with Legal Documents?
In general, the only documents that have to be personally served on someone in the course of a Supreme Court proceeding are:
- the claimant's Notice of Family Claim,
- the application materials when an application is made to change a final order, and
- the application materials when an application is being made for a finding that someone is in contempt of court.
Personal service is required when starting a court proceeding. Once the other side files his or her Response to Family Claim, almost all legal documents after that can simply be delivered to each side by ordinary service, at their respective addresses for service.
The easiest way to ensure personal service is properly done is to hire a process server, but you can arrange for someone else to do it for you.
What's the difference between personal service and ordinary service?
Personal service, also called service of process is the formal delivery of a document to someone in a manner that can be proven in court and which complies with the Supreme Court Family Rules about service. In a nutshell, personal service means personally giving someone a document, usually by handing it to them.
Ordinary service means simply sending a document to someone by mail, fax or sometimes email. A document is served by ordinary service by sending the document to the address for service set out by the claimant in the Notice of Family Claim and by the respondent in the Response to Family Claim.
The requirements for valid personal service are set out in Rule 6-3 of the Supreme Court Family Rules. The Notice of Family Claim must be physically handed to the respondent; dropping it through the mail slot won't do.
Since the court will require proof that the respondent was properly served, the person who did the service should prepare an Affidavit of Personal Service in Form F15. For this reason, the person doing the service usually must:
- be provided with a photograph of the respondent, so that he or she can confirm that the person served looked like the person in the photograph,
- ask the respondent to confirm that he or she is the person named in the Notice of Family Claim, or
- ask the respondent to produce his or her driver's licence (or other official government photo identification) and confirm that the name on the licence matches the name in the Notice of Family Claim and that the person served looks like the photograph on the licence.
The claimant in a family law proceeding cannot serve the respondent personally. You must get someone else to do it for you! That person can be anyone who is age 19 or older and sane.
Of course, not everyone is willing to be nice about things and cooperate with service. When the respondent is avoiding service, you can get an order that he or she be served in some other way than the usual, proper way. This is called substituted service.
You will have to prove that you can't serve the respondent in the normal manner before you will be allowed to serve them substitutionally, so you'll have to provide the court with an affidavit from your process server describing how the respondent is avoiding service, or your own affidavit stating that you don't know where the respondent is and that he or she can't be found.
The court has a fairly wide latitude when it comes to making orders for substituted service. The court can order that the respondent be served by:
- posting a copy of the documents to the door of his or her home or office,
- running ads in the legal notices section of a newspaper distributed where the respondent lives,
- leaving a copy of the Notice of Family Claim with an adult living where the respondent is thought to live,
- mailing it to the respondent by registered mail, or
- posting a copy of the documents in the court registry.
The court will likely impose conditions on the substitutional order, like extending the time for the respondent to reply. Once those conditions are met, service will be considered to have been effected. You will have to prepare an affidavit proving that you have met the conditions the court has set.
You must personally serve a party when you are making an application that he or she be found in contempt of court. Rule 21-7 requires that the other side be personally served with the Notice of Application asking that the party be found in contempt of court plus copies of the affidavits that will be used in support of your application.
You can find more information about the Supreme Court procedure for serving documents in the chapter Resolving Family Law Problems in Court within the section Starting a Court Proceeding in a Family Matter.
|The above was last reviewed for legal accuracy by Thomas Wallwork, September 27, 2014.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|