How Do I Substitutionally Serve Someone with Legal Documents?

From Clicklaw Wikibooks


The Supreme Court Family Rules require that a person being sued be notified about the court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. and be given copies of the Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief." starting the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." in a certain formal manner. This is called personal serviceIn law, the delivery of a legal document to a party in a court proceeding in a manner which complies with the rules of court, usually by physically handing the document to the party and verifying his or her identity. Personal service is usually required for the proper delivery of the pleadings that are used to start a proceeding to ensure that the party is given proper notice of the proceeding and the opportunity to mount a defence. See also "ordinary service," "pleadings" and "service, substituted.".

Personal service is normally accomplished by physically handing a copy of the Notice of Family Claim to the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."; really, the documents only need to touch the respondent's body. This is not always possible. If you do not know where the person you want to sue lives, or if that person is avoiding being served, you may have to apply to court for an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." that you have permission to personally serve the respondent in a way other than the way set out in the rules. This is called substituted servicePersonal service performed in a way other than required by the rules of court, as may be authorized by the court. If a respondent cannot be served for any reason, such as if he or she is hiding or refusing service, the court may permit a claimant to serve the other party "substitutionally" by means including an ad in the legal notices section of a newspaper's classified ads or posting the document in the court registry. See "personal service.".

Applying for an order for substituted service

You must get the court's permission before the court will accept any other means of service than that set out in Rule 6-3.

Once you have filed your Notice of Family Claim you must apply for an order that you be allowed to serve the respondent substitutionally. You will have to prepare a Notice of ApplicationA legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief." describing the order that you want the court to make and your affidavit in support of your applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.".

Your affidavit should set out the reasons why personal service is impossible. If it's because you don't know where the respondent is, you should say so. You should also say that you have no means of contacting the respondent, for example, through family or friends. If you can't serve the respondent because he or she is avoiding service, you should describe how you've tried to serve the respondent and how often you've tried.

Because the respondent hasn't been served you can make your application right away, without having the follow the usual rules that give the respondent time to replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut." to your application. You can file your application and have your application heard the same day. Apart from this, the remainder of your application will be just like the normal application process that is described in How Do I Make an Interim Application in a Family Law Matter in the Supreme Court? in the How Do I? section on Interim Applications.

Options for substituted service

Posting in the registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse.

If you have no idea at all where the respondent might be, you can ask the judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. to allow you to serve the respondent by posting a copy of your Notice of Family Claim in the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. for a certain period of time, usually no less than 30 days. This is the cheapest means of alternative service, and you really have to show that you've got no idea where the respondent is, no relatives or friends to contact him or her through, and no idea where the respondent works.

If the court grants this order, the court will specify how long the Notice of Family Claim must remain posted. Your job will be to take the judge's order and a copy of your Notice of Family Claim to the court registrarAn officer of the court with the power to make certain decisions, including the settlement of a lawyer’s bill, a party's costs of a court proceeding and settling the form of an order. An officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings. See "jurisdiction" and "pleadings.". The registrar will arrange for the posting, take note when it was put up, and take note when it was taken down.

Notices in the classified ads

Legal notices ad for substituted service
If you have a general idea of where the respondent might be (in Vernon, in the Peace District, in the Lower Mainland, for example) you can ask the court for an order that you serve the respondent by posting an ad in the legal notices section of the area's local paper. The judge will usually specify the newspaper and for the number of issues the ad must be run in.

An example of this means of substituted service under the old Rules of Court appears at right. In this ad, the plaintiff (claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent.") J.H.H. is suing the defendant (respondent) I.L. for orders involving the care and control of a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.", child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses., and probably other reliefIn law, an order sought by a party to a court proceeding or application, usually as described in his or her pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings.". (Note that in the course of making the order for substituted service in this example, the judge hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." the application also made other orders relating to child support, and custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." and guardianship of the child. This is a bit unusual. Normally the courts will not make those sorts of orders without notice to the other partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant.", even if that party's whereabouts are unknown.) You can see how this ad:

  1. advises the defendant of the fact of the lawsuit, and provides important information about the style of causeIn law, a lawsuit, an action, or a cause of action; the wrongful act of another which gives rise to a claim for relief. See "action," "cause of action.", the court registry and the court file number,
  2. states the terms of the order for substitutional service (posting in one issue of the weekend newspaper),
  3. tells him or her how to get a copy of the plaintiff's materials, and
  4. gives the name and contact information for the lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." representing the plaintiff.

Under Rule 6-4(3), newspaper ads must be in Form F11. This form looks a bit different than the example given here.

Be wary of pursuing this means of substituted service: the costs can be quite high, as newspapers sometimes charge special rates for legal notices. The example on the right, which came from an old issue of the Vancouver Sun probably cost between $400 and $550.

Service through friends, relatives and employers

You may know another way by which the court proceeding can be brought to the respondent's attention with a fair degree of certainty. The court may allow service to occur through a third partyA person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party.", providing that there is reason to believe that the respondent has a fair amount of contact with the third party and that the third party can be relied on to bring the proceeding to the respondent's attention. Typical examples are:

  • through the respondent's work (co-workers or employers, who will probably be in contact with the respondent on a reliable basis),
  • through family (a relative that you know the respondent keeps in touch with),
  • through friends (friends who see the respondent on a pretty regular basis), and
  • through the respondent's residenceThe geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction." (a landlord or other people sharing the respondent's apartment).

If you are certain that leaving your materials with one of these people will ensure that your court proceeding is brought to the respondent's attention, the judge may give you an order to that effect. The order will usually say something to the effect of:

service upon the Respondent may be effected by delivering a copy of the Notice of Family Claim with any adult resident at Apartment 123 at 456 Main Street in Anytown, British Columbia

or

service upon the Respondent may be effected by delivering a copy of the Notice of Family Claim to his employer, John Doe, of John Doe's Autobody, whose place of business is at Unit 123 at 456 Main Street in Anytown, British Columbia

This means of service is usually reserved for respondents who are or appear to be avoiding service.

Other means of service

The court really does have a wide latitude when it comes to making orders for substituted service. Among other things, 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,
  • posting a copy of the documents in the local post office, or
  • mailing it to the respondent by registered mail.

The particular method the court considers appropriate will always depend on the circumstances and what is reasonable in those circumstances.

The effect of substituted service

The goal of serving someone substitutionally is to try to alert that person to the fact of the court proceeding and tell him or her how to get more information about the proceeding.

The effect of an order for substituted service is that a person will be deemed to have been served once all the terms of the order for substituted service are met.

Whether the respondent is actually alerted to the proceeding is another story. The point here is that the court will consider the respondent to have been properly served. This will allow you to go on with your court proceeding in the normal manner once you've met the terms of your substituted service order, whether the respondent has found out about your claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. or not.

The most important thing to know about substituted service, is that the time before you can do anything else in your court proceeding — such as applying for a default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim.", or making an application for temporary relief — doesn't start ticking until after the terms of the order of substituted service have been fulfilled. In other words, it isn't until the terms of the order are done that you can start counting the time until your next application to court.

For example, say the order allows you to serve someone by posting a copy of your pleadings in the court registry for 45 days. It isn't until the forty-sixth day that you can start counting time. Since the respondent has 30 days to file a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out his or her reply to the claimant's claim and the grounds for his or her reply. See "action," claim," "Notice of Family Claim" and "pleadings.", you will have to wait 76 days (46 plus 30) from the date you got the order and the order was posted before you can ask for a default judgment or make any other application to the court.

More information

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.


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