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, as there may be rules that you have to follow, that you are unaware of. 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.
If your family law matter is being dealt with at the Supreme Court (Family Division) or Supreme Court (General Division), 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, then 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 very 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, then 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. In some courts, like the Supreme Court (Family Division), this may include filing a Notice of Motion under Rule 31.09. The Notice of Motion will be to 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 the way you propose to serve the documents, what language(s) the person is able to read, and 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 he or she is served in the way you are proposing.
There may also be requirements for what you need to send and how you make the request for service, as well as requirements as to 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 applications made under the ISO Act (Interjurisdictional Support Orders) is usually arranged by the courts. If you are making an application under the ISO Act for someone who lives outside of Canada, you likely won’t have to arrange for personal service of the documents on the other party yourself. 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.
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