How Do I Substitutionally Serve Someone with Legal Documents?
| EDITS IN PROGRESS
JP Boyd on Family Law is undergoing updates. Some information is out-of-date, especially information about Provincial Court (rules, forms, and procedures), parenting after separation and moving away after separation under the Divorce Act. Read more under:
The Supreme Court Family Rules require that a person being sued be notified about the court proceeding and be given copies of the Notice of Family Claim starting the proceeding in a certain formal manner. This is called personal service.
Personal service is normally accomplished by physically handing a copy of the Notice of Family Claim to the respondent; 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 order 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 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 Application describing the order that you want the court to make and your affidavit in support of your application.
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 they are 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 to follow the usual rules that give the respondent time to reply 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? part of this resource.
Options for substituted service
Posting in the registry
If you have no idea at all where the respondent might be, you can ask the judge to allow you to serve the respondent by posting a copy of your Notice of Family Claim in the court registry 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 them 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 registrar. 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
If you have a general idea of where the respondent might be (in Vernon, in the Peace District, or 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 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 (claimant) J.H.H. is suing the defendant (respondent) I.L. for orders involving the care and control of a child, child support, and probably other relief. (Note that in the course of making the order for substituted service in this example, the judge hearing the application also made other orders relating to child support, and custody 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 party, even if that party's whereabouts are unknown.) You can see how this ad:
- advises the defendant of the fact of the lawsuit, and provides important information about the style of cause, the court registry, and the court file number,
- states the terms of the order for substitutional service (posting in one issue of the weekend newspaper),
- tells them how to get a copy of the plaintiff's materials, and
- gives the name and contact information for the lawyer 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 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),
- 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 residence (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
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 their 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 them 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 claim 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 judgment, 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 Claim, 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.
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.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Megan Ellis, QC, June 9, 2019.|
|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.|