When to use this Guide:
Use this guide when you need to serve the other person in your family court proceeding (called "respondent") but, after making reasonable and diligent efforts, you cannot find them OR you believe they are avoiding being personally served with (i.e. handed) the court documents.
This guide gives information on how you can ask a judge for permission to serve the respondent another way, called "substituted service". You do this by filing a "Motion" which requires filing specific forms. A judge can only grant your request if they are satisfied you have met the conditions for substituted service.
Where you can use this Guide:
You can use this guide to make a Motion for an Order for Substituted Service in Supreme Court (Family Division) locations in Nova Scotia.
Simplified Steps (click the expandables below for more information):
- Step 1: Before you begin.
- Step 2: Gather the required documents.
- Step 3: Complete the required documents.
- Step 4: File the required documents.
- Step 5: Wait for direction from the Court.
- Step 6: (if your Motion is approved) Serve the documents.
For definitions of family law terms, visit our Glossary or Parenting Terms: What do the Words Mean?
It is always recommended you obtain legal advice. Click here for information about legal support and advice options in Nova Scotia, including no and low-cost services.
Educate yourself about how to serve the other person in your court proceeding, including ways to try to find them before making a motion. Read Nova Scotia Civil Procedure Rule 31.10. You are also encouraged to read these 2 cases: Dacey v. Dacey and Gaudet v. Crossman. For more information, read "Giving the other person notice of the proceeding" and "Personal service for a divorce proceeding".
- You must have already started a court proceeding in the Supreme Court of Nova Scotia (Family Division), or will be starting a court proceeding the same time you file your motion.
You must pay a feel of $66.00 for your Motion (subject to change without notice), unless you qualify to have this fee waived
- You can apply for substituted service if:
- You have tried but cannot locate the respondent, OR you have tried unsuccessfully to have them personally served and you believe they are avoiding being handed the court documents on purpose, OR there is another very good reason.
AND
- You want to serve them another way, which you believe will bring the court documents to the respondent's attention or presents the best possibility of doing so.
You can apply for Substituted Service with the following documents and fee:
- Affidavit (Request for substituted service in a family proceeding) PDF - WORD
- Affidavit(s) of attempted service (if applicable - using Form 39.08) WORD
- Draft Order for Substituted Service (Family Proceeding) PDF - WORD
- Ex Parte Motion (Family Proceeding) for Substituted Service PDF - WORD
- Personal Representation Form PDF - WORD
- Filing fee of $66.00 (to apply for a waiver, complete and bring the Waiver of Fees form, including all required supporting documents. More information can be found here).
Affidavit (Substituted Service)
This document contains your evidence to help the court understand what facts may support your request, such as:
- the efforts you have made to locate and, or serve the respondent, and
- why or how your proposed method will bring the court documents to the respondent's attention, or provides the best possibility of doing so.This affidavit includes prompts to help you explain your evidence to the court and references Civil Procedure Rule 31.10. It is important you read this rule, a copy of which is included in the package.
You will see that you may attach documents to your affidavit as part of your evidence. If so, be aware that all documents are referenced in your affidavit at paragraph 16 as exhibits. More information about how to attach exhibits is found online (see FAQs #2, 8 & 9) by clicking here.
Do NOT sign the affidavit by yourself. To be considered evidence, the affidavit must be sworn or affirmed in-person in front of a lawyer, Notary Publuc, or Commissioner of Oaths. (They will also ensure that any attached documents are properly marked as exhibits). If you have a lawyer, you can do this with your lawyer. If not, you can do this at the courthouse with a court officer when you file your documents for no extra charge.
Affidavit(s) of Attempted Service (if applicable)
If you hired a professional to try to personally serve the respondent, they will give you an affidavit of attempted service which you can file with the court. If someone (who is not a professional) has tried to serve the respondent but was unsuccesful, they can complete an Affidavit explaining their efforts. You cannot do this for them. They can complete Form 39.08 (Affidavit) and have it sworn or affirmed as explained above. Information about what an Affidavit should look like is available here.
Draft Order for Substituted Service
This document sets out what you would like the judge's order to say. It exaplains how the court documents will be served and what you need to do to prove that the judge's instructions have been followed. Complete as much as you can based on the method of service you have asked for in your affidavit.
Ex Parte Motion (Family Proceeding) for Substituted Service
This document summarizes what you are asking for and references Civil Procedure Rule 31.10, the legal authority which allows a judge to approve substituted service in ccertain circumstances. The Motion is called "Ex Parte" because the other party is not being notified of your request.
Read and complete this document carefully. Sign and date before filing.
Personal Representation Form
Read and complete this document carefully. Sign and date before filing.
Filing fee of $66.00.
You can pay your filing fee at the courthouse by cash, debit, credit card or cheque. If your income is low, you may qualify to have this fee waived. To apply for a waiver, complete and bring the Waiver of Fees form, including all required supporting documents. More information is found online here.
Ensure you have all of the required documents and fee from Step 3. File these at the same courthouse where you started your family proceeding. (Alternatively, you can start your family court proceeding at the same time as you file these documents). More information on how to start a court proceeding can be found here.
Once your documents are submitted, they will be reviewed by a court officer, a judge, or both. A court appearance may or may not be required. If yes, you will be told the date and time when the judge will hear and decide your motion. The court will tell you if you must attend this cout appearance in-person, by video conference, or telephone. If the judge decides to approve your request (i.e. grants your Motion), the court will complete the Order for Substituted Service and return it to you. The judge may make adjustments to your request and impose additional steps for you to take.
If your motion is granted and an Order for Substituted Service is issued, follow the steps in the order carefully. Once you have done so, an affidavit must be completed to prove the steps in the order were followed. If you do not have a lawyer, you can use the sample Affidavit (of Substituted Service) to help. You can get a copy from the duty conciliator at your local courthouse.
Remember that you cannot sign the affidavit by yourself, you need to swear or affirm this document in-person in front of a lawyer, Notary Public or Commissioner of Oaths (this is further explained in Step 3).