Yes, in almost all cases. The other person has the right to know about and be involved in the court proceeding, except in very rare and unusual cases.
When the other person is given notice of the court proceeding, this is often called 'service' or 'service of documents.'
Service is the delivery of court documents to a required person. Usually a person is served with documents to let them know of a court proceeding that they will be involved in. Some documents may be served by mail to a ‘designated address,’ or the person’s lawyer may accept service on their client’s behalf. In some situations, documents must be personally served by placing the documents directly into the person’s hands.
That depends on what kind of application was filed, and the method of giving notice may differ depending on what court the application was filed in.
For most non-urgent applications in the family law courts, notice of the court proceeding is given to the other person by mail. The court mails them a package, sometimes called a 'respondent's package.' This package usually contains:
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copies of the documents the applicant filed with the court
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blank documents that the respondent is required to file
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a notice telling the respondent by what date they have to file their documents
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a notice telling the respondent the date and time when they are to appear.
This is why, in most cases, the applicant must provide a complete, current mailing address for the respondent. This can be a home or work address - somewhere where you know that person will receive the mailed package.
For some types of proceedings, the other person has to be personally served with documents giving them notice of the proceeding. These types of proceedings include:
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those filed on an urgent or emergency basis
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Petitions for Divorce
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Applications for Divorce by Written Agreement
This means that someone - other than you or anyone else named on the court file - must hand the package of documents directly to the person being served. For more information, please see the questions and answers below.
Most of the time, you will need a mailing address to serve the other person. This can be a home address or work address. Sometimes people can be served even if you do not know where they live or work, as long as you have some other way to find them. For example, you might know that the other person plays a sport or goes to an activity at a certain time and place. Talk to court staff if you think this might work in your case.
The other person has to be given notice of your application in order for the matter to proceed. Your matter will be delayed if the other person is not properly notified of the court proceeding. It is important for you to provide the appropriate information about how the other party can receive notice of the application from the start, so that there are no delays. It may seem frustrating to have to get this information, but it will help your matter to proceed more smoothly.
In some cases, the court may be able to help you find an address for the other person, but only if you have tried to find an address first. This is a last resort, because the court may not always have access to this information, or the information the court may have access to may be out of date and not helpful. Speak to court staff for more information.
There are a number of things you can try to find an address for the other person. They can include:
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checking with the other person’s friends, relatives, former roommates, co-workers, other ex-partners, or current partner for information on where the other person lives or works
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doing internet searches through search engines like Google, Yahoo, Bing, Ask.com or Canada 411 (Canada 411 has reverse phone number, reverse address, and people finder options)
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doing social media searches through Facebook, Twitter, LinkedIn or Google Plus, or have someone you know do it for you (someone who might not be blocked by the other person)
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hiring a skip-tracer or private detective - they can be found in the Yellow Pages or online
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checking for other records for the person, like at another court, if you know that they have a case going on against someone else
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note: some courts have rules that will not allow you to access this information without going through a special application process
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hiring a process server or speaking with a lawyer for advice on how to locate someone
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click here for ways to find a lawyer
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process servers may be found by using the Yellow Pages or the Interne
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checking with the Nova Scotia Registry of Joint Stock Companies online for business names and addresses, company officers, business activity history other related registrations, if you think the other party is involved in a business.
You are expected to take all reasonable steps to find an address for the other person, as long as it's safe for you to do this and there is nothing keeping you from using the method listed above, like a no-contact order, undertaking/recognizance, or any other order that prohibits you from contacting the other person.
The other person in the proceeding can be served through their lawyer (by giving the lawyer the documents) if you are sure that the lawyer is representing the other person in THIS proceeding.
You should check with the lawyer to make sure that they are representing the other person, unless the matter is already before the court and the lawyer has told the court that they are representing the other person now.
Personal service is required for certain types of court proceedings, like:
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Petitions for Divorce
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Applications for Divorce by Written Agreement, and
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Urgent or emergency court applications
In some jurisdictions, almost all applications require personal service. When personal service is required, this means that someone has to hand-deliver a package of documents directly to the person being served. Personal service cannot be done by mailing documents to someone, or using a courier, fax, or registered mail. If the person being served has a lawyer, that lawyer may accept service for their client. You should check with the lawyer to make sure they will accept service of the documents.
According to Nova Scotia’s court rules, you cannot serve the other party yourself. If the court file is between you and your ex-partner, this means that you and your ex are ‘parties to the file,’ and neither of you can serve documents on each other. This also means that neither of you can serve documents relating to your file on a third party. For example, if you are going to court and need to serve a subpoena on a witness, you cannot serve the subpoena yourself.
In Nova Scotia, anyone over 19 who is not a party to the file (not named on the file), and who can read and write, can serve documents. This means that you can get a friend or family member to do the service. However, it is best to get someone completely unrelated to you or your file to do the service. Getting a friend or family member to do the service puts them in the middle of your dispute, and can put them in danger if there is a risk of violence from the person being served.
Getting a friend or family member to do the service may also raise concerns for the judge dealing with your file. If the judge has concerns about whether the personal service was done properly, this can cause problems for you. For example, you may have to arrange to get the documents re-served.
It is recommended that, where possible, you hire a professional process server to do any personal service required for your file. Professional process servers may also be called 'bailiffs.' You will have to pay a fee for this service. Every process server will set their own fees, and how much you have to pay will depend on things like:
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how far the server had to travel to serve the documents, and
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how many attempts at service they had to make
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for example, how many times the process server had to go to the person’s home to try to serve them
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Not all process servers will serve family court documents. Check with the process server to make sure this is something they deal with.
Sometimes the court can ask Sheriff Services to help with personal service, free of charge. This service is not always available in every court and may be different in each court site.
Some courts need 6 - 8 weeks to do this work, and they may only be able to attempt service a limited number of times. This may mean that their ability to serve the other person is limited and could slow down your court process.
The court cannot guarantee that the Sheriffs will be able to have the documents served for you. Talk to court staff about this option.
Yes, you can hire someone to do this work. They are called bailiffs or process servers. Their numbers are found in the Yellow Pages or on the Internet. You will have to pay for this service. Bailiffs charge their own fees based on the amount of time it takes to serve the person, and the travel costs involved.
In Nova Scotia, anyone over 19 who is not a party to the file (not named on the file), and who can read and write, can serve documents. This means that you can get a friend or family member to do the service. However, it is best to get someone completely unrelated to you or your file to do the service. Getting a friend or family member to do the service puts them in the middle of your dispute, and can put them in danger if there is a risk of violence from the person being served.
Getting a friend or family member to do the service may also raise concerns for the judge dealing with your file. If the judge has concerns about whether the personal service was done properly, this can cause problems for you. For example, you may have to re-serve the documents.
It is recommended that, wherever possible, you hire a professional process server to do any personal service required for your file.
If the person being served has a lawyer who works nearby, you can often serve the documents on the lawyer (check with the lawyer to make sure they will accept documents for their client.) If they do not have a lawyer, or their lawyer is not located nearby, you will have to arrange for someone near where the person is to do the service. It is best, where possible, to hire a professional process server to do this. You will have to get the documents to the person doing the service (you may have to courier them), and after they have served the person, make sure you get the completed Affidavit of Service (or in some cases, the Affidavit of Delivery) back from them to go in the court file.
After serving documents on another person, the server will fill out a court document called an Affidavit of Service. In some cases this may be called an Affidavit of Delivery.
The Affidavit of Service or Delivery is a sworn or affirmed statement that is completed by the person who performs the service. This document tells the court:
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that the other party was served
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what they were served (which documents)
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where and when they were served, and
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who performed the service
The server will also state how they knew they were serving the right person. For example:
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they may have asked to see the person’s driver’s license, or
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they may have been given a picture of the person, and the person they served matched the person in the picture.
The person who did the service fills out this information, and brings the Affidavit of Service or Delivery to a lawyer or Commissioner of Oaths to have the document sworn or affirmed. This means that the server will swear on a holy book or make a solemn promise that everything in the Affidavit is true, and the lawyer or Commissioner will witness them sign the document. Professional process servers usually have someone in their office who will swear or affirm the Affidavit of Service or Delivery.
It is very important that the completed and sworn/affirmed Affidavit of Service or Delivery be filed with the court. The judge or court officer dealing with the file will need to see the Affidavit to know that the party was served, and that this service was done properly. The Affidavit of Service or Delivery tells the court that the person who was served had notice of the legal proceeding, and may enable the court to move ahead with the proceeding even if that person does not respond or show up to court as required.
Sometimes it may be impossible to serve documents on a person who is required to be given notice of a proceeding. In this case, a court may allow you to serve the other party in a way other than personal service. You will need to prove that you have taken all reasonable steps to try to find the other party.
This means that you will have to show the court evidence of how you have tried to find that other person. It is not enough to just say ‘they moved to New Brunswick 5 years ago and I don’t know their address.’ You should keep a record of everything you have tried to find the person. This can include:
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phone book and internet searches
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calling their last known employer
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asking their family members
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visiting their last known address to see if they still live there
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trying to find them on Facebook, or
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maybe even hiring a private investigator or ‘skip tracer’ to find the person.
You will also need to show the judge that there is another way to bring notice of the proceeding to the other party’s attention, other than personal service. This may include serving a friend or family member of the person (who is still in contact with that person), or maybe posting a notice in a newspaper in the community where you believe they are living. This will depend on the specific facts of your case.
Applications for substituted service are sometimes started by filing a Notice of Motion for Substituted Service, along with other documents, like an affidavit. You should check with court staff to find out their process, and to make sure you are filing the right documents, as this may vary between courts. You must give details in your affidavit about:
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all your attempts to find the person
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your suggestion for notifying the other person instead of using personal service, and
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why you think that the suggested way of serving the other person will work.
If the judge agrees, then an Order for Substituted Service will be issued. You will then need to serve the Order for Substituted Service and all of the documents in the way set out in the order.
A party to a file is someone starting or responding to a court application. This includes anyone listed as an applicant, petitioner, or respondent on that court file.
When a party to a file fills out court documents, they will usually be asked for their ‘designated address.’ This is an address at which the person is guaranteeing they will be able to receive court documents. When a person gives their designated address, they are confirming that anything sent to that address by the court or by the other party will be received by them. Some courts call this a ‘service address.’
If someone is represented by a lawyer, the lawyer’s address will often be their designated address. If you do not have a lawyer, you will usually list your home address as your designated address; however, if you do not wish to list your home address on your court documents, you can designate your work address, or another address where you know you will be able to receive mail.
If your designated address changes, you must notify the court in writing. If you fail to do this, the court is not responsible if you do not receive documents mailed out to you at the address still noted in your court file.
Serving documents in another country can be very complicated. You should speak to a lawyer for advice about what rules apply in your situation.
In most cases, the other party or parties named on the court file must receive notice of the court application. How this gets done will depend on the type of application being made. In some unusual cases, it might be possible to have the other person served by mail. In many cases, though, personal service of the documents is required. This is the case for most divorces, as well as many other types of applications, like urgent or emergency applications. In many cases, you will need a judge’s permission to serve the documents in another country.
It is especially important to at least speak with a lawyer if you have to serve documents on someone who does not live in Canada. You may not be aware of all the rules you have to follow. If you have been directed to serve documents on the other party, and you have a lawyer, the lawyer will usually look after having the service done properly. A lawyer is the best person to research any applicable rules or laws, and to determine how the other person can be served in a way that follows the relevant rules or laws.
Civil Procedure Rule 31.09 can provide direction as to how to serve a person in another country, and whether you need a judge’s permission to serve documents on the other person.
As Rule 31.09 explains, you must check to see whether the country that the other party lives in has signed on to a special agreement for serving documents between countries. This agreement is called the Convention of Service Abroad of Judicial or Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, Canada Treaty Series 1989/2 (‘the Convention’).
If the other country has signed on to and implemented the Convention, that country normally allows personal service of documents on a person living in their country. If the other country is listed on the Convention, then you must follow the rules set out in the Convention for serving the documents for that country. You do not need a judge’s permission to serve the other person in this case, but you must follow the rules for service or your method of service may not be acceptable. In most cases, countries who have signed the Convention will specify a Central Authority whose job is to look after serving documents received from other countries. You will have to send your documents for service to that Central Authority.
In some cases, however, the country may have signed the Convention, but not all parts of it. You must check whether the country where you want to serve the documents has signed onto all parts of the Convention and that they allow personal service.
In some cases, there may be other agreements about serving documents that countries have signed on to, even if they did not sign on to the Convention discussed above. These are often called ‘bilateral agreements.’ You will need to check to see if there is a bilateral agreement between Canada and the country where the other person(s) on your file lives if the country is not listed on the Convention. This process can get complicated and help from a lawyer is often needed. If there is a bilateral agreement in place, then you have the choice of following the directions given for service that are set out in that agreement, or filing an application with the court in Nova Scotia to get directions from a judge for the requirements of service.
If the country where the other party lives has not signed onto any special agreement with Canada for serving documents, you may need to file an application with the court to get a judge’s permission to serve the documents and for directions on the method of serving the documents. This may include filing a Notice of Motion under Rule 31.09. The Notice of Motion will ask permission from a judge to serve the documents in a method that you suggest - the judge will decide whether your suggestion is acceptable or not. The method must be likely to bring the documents to the attention of the person you are serving. You must file an affidavit and a draft order in support of your motion. The affidavit needs to discuss in detail:
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the way you propose to serve the documents
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what language(s) the person is able to read, and
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the facts that support why you believe the person will receive the documents and understand the legal issues and process that they are responding to, if they are served in the way you are proposing.
There may be requirements for what you need to send and how you make the request for service. There may also be requirements about the language that the documents have to be written in. Getting legal advice will help you figure out these requirements.
For information about which countries have signed on to the Convention, service requirements, and the location of Central Authorities, click here.
In all cases, it is important for you to ask for extra copies of the documents you want to have served to ensure that you have replacements should your originals be lost.
NOTE: Personal service on respondents named on interjurisdictional support orders applications is usually arranged by the courts. To be sure you know what to do in your situation, however, it is a good idea to speak with court staff. You can also get advice from a lawyer. Click here for more information about ISO applications.