‘Service’ means delivery of the court documents to your spouse to notify them about the divorce.
Personal service’ means you must arrange to have someone hand-deliver the divorce documents directly to your spouse. Personal service cannot be done by mailing the documents to your spouse, or by using a courier, fax, or registered mail.
If your spouse has a lawyer, the lawyer may accept service for their client. You should contact your spouse’s lawyer first to make sure they will accept service of the divorce documents on their client’s behalf.
You must have your spouse personally served with the divorce documents if you start your divorce by:
Application for Divorce by Agreement, or
Petition for Divorce.
Joint Applications for Divorce do not require personal service.
First, file the Application for Divorce by Agreement or Petition for Divorce with the court. Filing the document with the court and getting it stamped by the court makes it an official court document.
You then have 6 months to have your spouse personally served with the Application for Divorce by Agreement or Petition for Divorce, counting from the day after it is filed.
Make sure you file the Petition for Divorce or Application for Divorce by Agreement with the court first. Otherwise, you are serving unofficial documents on your spouse and you’ll have to arrange to have them served all over again.
After you file your Petition for Divorce, you will have 6 months to arrange for your spouse to be personally served the court documents. If this time runs out before this happens, then you will need to restart your divorce, which will include filing the Petition for Divorce and the other court documents, and to pay the filing fees again. In some situations, you may be able to apply to the court to give you more time to serve, but you must ask for more time before the 6 months runs out. The judge will not automatically grant the request for extra time and you will need to explain why you were not able to serve the Petition for Divorce within the 6 month time limit.
You have two options for having your spouse served:
1. 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.
2. Have an adult who is 19 or over, and who can read and write, personally serve your spouse.
You can 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 not always a good idea to ask a friend or family member to do serve your spouse the divorce documents:
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 correctly, and you might need to arrange to do it again.
Note: If your spouse is represented by a lawyer, the lawyer may agree to serve your spouse or accept service on their behalf.
You cannot serve your spouse with the divorce documents yourself. You must have someone else do this. This person is called the ‘server.’
After the server serves your spouse with the divorce documents, the server must fill out a court document called an Affidavit of Service (Form 31.05). The Affidavit of Service is a statement that is signed under oath by the person who served the documents on your spouse. The Affidavit of Service tells the court:
that your 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 other photo identification, or they may have been given a picture of the person, and the person they served matched the person in the picture.
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 your spouse had notice of the divorce, and may allow the court to move ahead with the divorce even if your spouse does not respond or show up to court if required.
When you file a Petition for Divorce or Application for Divorce by Written Agreement with the court, court staff will put a red seal and law stamp on one of the original documents.
When they serve your spouse, the server must:
show your spouse the original ‘red seal’ copy of the Petition or Application by Written Agreement,
give your spouse a certified copy of the Petition for Divorce or Application for Divorce by Written Agreement, and copies of all the other documents you filed.
You must then return the following to the court:
the completed and sworn Affidavit of service attaching, as an Exhibit, the original red seal Petition or Application for Divorce by Written Agreement used for service; or
the red seal Petition/Application with an acceptance of service completed and signed by your spouse’s lawyer confirming they are accepting service on their client’s behalf.
This red seal copy and proof of service must be in the court file for your divorce to be processed.
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 sending the documents to an email address or social media account used by your spouse. 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 form called a ‘Notice of Motion’ (Form 23.03) 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. You must give details in your affidavit of all 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 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.