PERSONAL SERVICE

When is Personal Service Required?
Generally, personal service (or an alternative to personal service) is required for the following:

• documents that start (or restart) a court case, for example an Application or a Notice to Change a Final Order or Agreement

• a Contempt Motion (must be by personal service and not an alternative method)

• when a judge requires it (often if there has been a long gap in a court case)

 

Are there Exceptions?
There are special rules regarding service of:

• government agencies

• corporations

• persons under a mental disability

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If it is not reasonably possible to serve personally (or by an alternative), a judge can order that another service method be used. This requires a Motion for Substituted Service. In rare cases, a judge may dispense with service and allow the case to proceed without the other party getting notice. If you cannot serve personally (or by an alternative) get legal advice. The right to notice of a court proceeding effecting one's interest is fundamental to justice and lightly not dispensed with. The Judge will make the decision based on the evidence of the efforts to locate the other party and options for service.

 

What is "Personal Service"?
For personal service:

• The person serving the documents should attempt to hand the documents to the person being served. If that person refuses to accept the documents, then the documents should be placed next to them or at their feet (so long as the person can pick it up).
   

• The person being served need not accept the documents.  If they chose to throw the documents back or refuse to pick them up, just leave them there.  Service may be effective regardless of what the person being served decides to do with the documents. (If the documents are left in a public place and the person being served leaves first, then you may eventually need to pick them up.
   

• The person being served should be told that they have been given court documents.  (It is usually best to do this after giving the documents to the party.) This can be as simple as saying "These are court documents for you!"
   

• The person being served need not sign anything.
   

• The identity of the person being served must be confirmed.  For example, the person serving can identify the person being served by:

  • his/her personal familiarity with the person being served;

  • the person being served admitting their identity (it is helpful if one is shown identification documents and notes are made of the ID);

  • identifying the person being served by a photograph provided by a party to the proceeding (as a practice, they should be given a colour copy of the photocopy before attempting service); or

  • a third party (including the person seeking service) who is familiar with the party to be served identifying that person to the person doing the serving.
     

What are "Alternatives to Personal Service"?
It is also permitted to serve in one of the following ways:

• If a lawyer is:

  • “on the record” (see explanation in Service in General) for the party with the court (listed on court papers filed), or

  • instructed to accept service by their client,

then the lawyer for the other party may accept service by writing a note on the document with the details and the lawyer’s signature.

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• The documents may be left with an adult at the party’s residence (if possible, get the name of the party and confirm that they will give it to the party), but another copy of the documents must be mailed to the party at that address as well.  (This type of service can be problematic where it is alleged that that person never gave a copy to the party for whom the documents are intended.)
   

• The party being served signing and returning a Form 6: Acknowledgement of Service Card (after being mailed a copy of the documents). In this card, the party acknowledges that they have been served with the document and confirms their address. (This type of service can be problematic where a party initially agrees to cooperate with this, but later refuses to sign and return the Card.)  You must use the court form, not a registered mail or courier slip.
   

Who Can Serve?
Any adult person, other than a party to this case, can serve the documents.  Choose someone calm, reliable, and capable.  If you have no friend to do this for you, you can hire a “process server” to do it.  The person who serves the documents must attend before a court clerk or a lawyer to sign an Affidavit of Service.

The person serving the documents, needs to know what documents they are serving.  They should glance at the documents.  They need not know the contents, just what documents are there.

If the party being served may be violent, get legal advice regarding the options for serving safely.

How Do You Prove Service?
An Affidavit of Service must be completed giving the date, place, and other details of service of the documents.

The person who served the documents must swear (or declare) that the contents of the Affidavit of Service are true and sign the Affidavit.  This can be done in front of a lawyer or a court clerk, who commissions the Affidavit.

The Affidavit of Service must be filed with the court.

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Substitute Service

If a party cannot reasonably be served by personal service or is avoiding service, a judge can order that that party can be served by an alternative method.  This can include mail, email, texting, or service through another individual.  However, you must prove that this is necessary.

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