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:
- phone book and internet searches
- calling their last known employer
- asking their family members
- visiting their last known address to see if they still live there
- trying to find them on Facebook, or
- 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:
- all your attempts to find the person
- your suggestion for notifying the other person instead of using personal service, and
- 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.