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How Do I Substitutionally Serve Someone with Legal Documents? (view source)
Revision as of 22:02, 17 January 2024
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{{LSSbadge | {{LSSbadge | ||
|resourcetype = a self-help guide for | |resourcetype = a self-help guide for | ||
|link = [ | |link = [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/serving-documents/alternative arranging alternative <br/>(substitutional) service] | ||
}} | }} | ||
Rule 6-3 of the Supreme Court Family Rules requires that a person being sued be notified about the court proceeding and be formally served with copies of the Notice of Family Claim. This is called ''personal service''. | |||
Personal service is normally accomplished by physically | Personal service is normally accomplished by getting another adult (not the one who’s making the claim) to physically hand 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 gives you permission to personally serve the respondent using an alternative method. Rule 6-4 talks about the process for alternative methods of service, also known as ''substituted service''. Someone who receives substituted service is said to be ''substitutionally served''. | ||
==Applying for an order for substituted service== | ==Applying for an order for substituted service== | ||
If the person you’re trying to sue is hard to find, or is evading your efforts to serve them, you must get the court's permission before the court will accept any other means of service. | |||
For BC Supreme Court proceedings, once you have filed your Notice of Family Claim, you can apply for an ''order for substituted service''. You can do this by ''desk order'', which involves getting the registry to send your request for an order to a judge, without having to appear before the judge yourself. To do this, you need to prepare and file at the registry: | |||
* a Requisition for Consent Order or Order Without Notice in Form F29 | |||
* your Affidavit in Form F30 | |||
* a draft Order Made Without Notice in Form F34 | |||
Because the respondent hasn't been served, you can make your application | The ''requisition'' will describe the order that you want the court to make and your ''affidavit'' will set out the reasons why personal service is impossible. Since the documents you file are all that a judge will see in a desk order application, you need to be thorough, and the judge will not allow the application if they don’t think you have made a sufficient degree of effort. | ||
What should your application include? If service is not possible because you don't know where the respondent is, you should say so. You should also state whether or not you have 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. If you hired a process server, and that was not successful, include details and evidence of that effort in your affidavit. | |||
Your application should also present a plan for how substituted service should be done, whether that’s: | |||
* sending the materials to an email address you know they use, | |||
* leaving the materials with a friend, employer, or family member of the respondent whom you have reason to believe will get their attention, | |||
* mailing it to an address there’s a valid reason to think they will receive it, | |||
* by advertisement in a newspaper classifieds, assuming you have some idea what region they are in, or | |||
* if options are truly limited, by asking to be allowed to post it in the registry. | |||
Because the respondent hasn't been served, you can make your application for a desk order without having to follow the usual rules that give the respondent time to reply to your application. | |||
==Options for substituted service== | ==Options for substituted service== | ||
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*posting a copy of the documents to the door of their home or office, | *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, | *posting a copy of the documents in the local post office, | ||
*mailing it to the respondent by registered mail. | *mailing it to the respondent by registered mail, | ||
*emailing or sending the materials by some other internet-powered means, if you have an email or other online account that you know the respondent is using. | |||
The particular method the court considers appropriate <span class="noglossary">will</span> always depend on the circumstances and what is reasonable in those circumstances. | The particular method the court considers appropriate <span class="noglossary">will</span> always depend on the circumstances and what is reasonable in those circumstances. | ||
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Whether the respondent is actually alerted to the proceeding is another story. The point here is that the court <span class="noglossary">will</span> consider the respondent to have been properly served. This <span class="noglossary">will</span> 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. | Whether the respondent is actually alerted to the proceeding is another story. The point here is that the court <span class="noglossary">will</span> consider the respondent to have been properly served. This <span class="noglossary">will</span> 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 | The key point to understand about substituted service is that the countdown to take further action in your court case, like applying for a default judgment or requesting temporary relief, only begins once you have fully complied with the substituted service order's conditions. 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 <span class="noglossary">will</span> 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. | 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 <span class="noglossary">will</span> 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. | ||
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==More information== | ==More information== | ||
You can find more information about | The steps listed above focus on BC Supreme Court. You can find more information about both Supreme Court and Provincial Court procedure for serving documents by substitute service on Legal Aid BC’s Family Law website’s information page: [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/serving-documents/alternative Arrange for Alternative (Substitutional) Service]. | ||
{{REVIEWED | reviewer = [[ | {{REVIEWED | reviewer = [[Jane DePaoli]], September 11, 2023}} | ||
{{JP Boyd on Family Law Navbox|type=how}} | {{JP Boyd on Family Law Navbox|type=how}} | ||
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{{Creative Commons for JP Boyd}} | {{Creative Commons for JP Boyd}} | ||
[[Category: | [[Category:Helpful Guides & Common Questions|S]] | ||
[[Category:Starting a Family Law Action]] | [[Category:Starting a Family Law Action]] | ||
[[Category:JP Boyd on Family Law]] | [[Category:JP Boyd on Family Law]] | ||