What is personal service?
‘Service’ is the delivery of court documents to the required person, usually to give them notice of a legal proceeding. ‘Personal service’ is a way of giving notice of a court proceeding to a person, where someone hand-delivers a package of documents directly to that person. 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. Check with the lawyer first to make sure they will accept service on their client’s behalf.
When is personal service required?
Petitions for Divorce and Applications for Divorce by Agreement must be personally served on the other spouse. Joint Applications for Divorce do not require service.
How long do I have?
Once the Petition for Divorce or Application for Divorce by Agreement is issued by the court, it must be served on your spouse within six months after the day it is issued. If this time runs out before the other spouse is served, you will have to start over. This includes paying the filing fee again. Remember, the Petition for Divorce or Application for Divorce by Agreement must be filed with and issued by the court before service can take place. Otherwise, you are serving unofficial documents on your spouse (and you’ll have to arrange to have them served all over again!).
Who can serve (and who can’t!)
You cannot serve your spouse with the divorce documents yourself. You must have someone else do this. This person is called the ‘server.’
You have two options for having your spouse served:
Hire a professional process server (sometimes called a ‘bailiff’) to personally serve your spouse.
This is the best option. You will have to pay a fee for this service. Every process server will set their own fees, and how much you will have to pay will depend on things like how far the server had to travel to serve the documents, and how many attempts at service they had to make (for example, how many times they had to go to the person’s home to try to serve them). Not all process servers will serve family court documents. Check with the process server to make sure this is something they deal with.
- Have an adult who is 19 or over, and who can read and write, personally serve your spouse. You are allowed to get a friend or family member to do the service. However, it is better to get someone completely unrelated to you or your file to do the service.
Here are some reasons why it is better not to use a friend or family member to do the service:
- it may put them in the middle of your dispute
- it may put them in danger if there is a risk that your spouse might be violent or abusive when being served
- the judge may be concerned about whether the personal service was done properly and you might have to arrange to do it again.
Affidavit of Service
After the server serves the divorce documents on your spouse, the server must fill out a court document called an Affidavit of Service. The Affidavit of Service is a sworn or affirmed statement that is completed by the person who serves the documents on your spouse. The Affidavit of Service tells the court:
- that the other spouse was served
- what documents were served
- where and when the documents were served
- who served the documents
- how the server knew they were serving the right person. For example, the server may have asked to see the person’s driver’s license, or they may have been given a picture of the person, and the person they served matched the person in the picture.
If your spouse is represented by a lawyer, the lawyer may accept service on their client’s behalf. If the lawyer accepted service, this should be stated in the Affidavit of Service.
The server fills out the information for the Affidavit of Service, and brings the Affidavit of Service to a lawyer or Commissioner of Oaths to have the document sworn or affirmed. This means that they 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 signing the document. The lawyer or Commissioner will also sign the document. Professional process servers usually have someone in their office who can swear or affirm the Affidavit of Service. Anyone else can usually have their Affidavit of Service sworn or affirmed at the courthouse. They will need to bring their photo ID with them to do this.
You must file the completed and sworn or affirmed Affidavit of Service with the court. The judge or court officer dealing with the file will need to see the Affidavit to know that your spouse was served, and that service was done properly. The Affidavit of Service tells the court that the person who was served had notice of the divorce, and may enable the court to move ahead with the divorce even if your spouse does not respond or show up to court if required.
Notes on serving a Petition for Divorce
When you file a Petition for Divorce with the court, one of the original Petitions will be given a red seal and law stamp by court staff. Either the original ‘red seal Petition’ or a certified copy of the Petition must be shown to your spouse when they are served. The document used will depend on which court you are in.
When your spouse is served, the server must give them a certified copy of the Petition for Divorce and copies of all of the other documents you filed.
The original red seal copy or the certified copy used for service must be returned to the court with the Affidavit of Service or lawyer’s endorsement. This red seal copy or certified copy and proof of service must be in the court file in order for your divorce to be processed.
Notes on serving an Application for Divorce by Agreement
Personal service on your spouse is required if you start the divorce by Application for Divorce by Agreement. In this situation, personal service operates under the same Rules and in the same way as described for the Petition for Divorce.
What if I don’t know where my spouse is, or they are avoiding being served? – ‘Substituted service’
You need to make every effort to try to have your spouse served, so they know about the divorce. Sometimes – even if you make every effort - it may be impossible to have your spouse personally served. In this case, the court may allow you to serve your spouse in a way other than personal service. This is called ‘substituted service.’ You must get permission from a judge, in a court order, to use substituted service. Rule 31.10 of the Civil Procedure Rules deals with getting a court order called an ‘Order for substituted service.’
To get this type of order, you will need to prove that you have taken all reasonable steps to try to find your spouse. It is not enough to simply 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 done to find your spouse. This can include:
- phone book and internet searches
- contacting your spouse’s last known employer
- asking their family members
- visiting their last known address to see if they still live there
- trying to find your spouse on Facebook or other social media
- maybe even hiring a private investigator or ‘skip tracer’ to find them.
A lawyer or process server may be able to give you tips on how to locate your spouse.
You will also need to show the judge that there is another possible way to notify your spouse about the divorce, other than personal service. For example, this may include serving your spouse’s friend or family member (someone who is still in contact with your spouse), or maybe posting a notice in a newspaper in the community where you believe your spouse is living. The way to notify your spouse will depend on the specific facts of your case.
Applications for substituted service are often 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 differ between courts. You must give details in your affidavit of all of your attempts to find your spouse, your suggestion for notifying your spouse instead of using personal service, and why you think that the way you are suggesting for serving your spouse 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 divorce documents in the way set out in the order.
If you find yourself in this situation, it is highly recommended that you get advice from a lawyer.
For more information about service, click here.