Written by Colin A. Steffler
If you’ve been served with court papers, it may have come as a complete shock, or it may have been something you knew was coming. Either way, you may have no idea what you need to do next and responding to the lawsuit may seem like a daunting task. Here are a few quick “do’s” and “don’t’s” if you’ve recently been served, or expect that you might be in the near future.
Do Talk to a Lawyer
Even if you are thinking of representing yourself, it is a good idea to at least meet with a family law lawyer to get a better sense of how the law applies to your case and what steps you need to take to respond.
If you don’t have the means to hire a lawyer on your own, you might qualify for assistance through Legal Aid. Even if you don’t qualify for Legal Aid, you may at least be able to speak to a lawyer at a Family Law Information Centre (“FLIC”) to get some brief advice and the forms you need to fill out to answer the claim being made against you. For more information about qualifying for Legal Aid, or to find a FLIC office near you, see the links below:
Do Pay Attention to Deadlines and Respond Promptly
In most cases, you have 30 days from the date you are served to serve your response to their claims and file it with the court. Again, it is important to seek legal advice, as the forms you need to serve and file to respond to a claim can vary depending on the nature of the case. If you do not provide your response in time, you could be noted in default. If that occurs, you might be denied any further right to participate in the court proceedings and an order could be made without your input.
Don’t Try to Evade Service
If you know the court papers are coming, don’t try to avoid service. Trying to keep your address secret, pretending you aren’t home, or any other method of avoiding service may delay things in the short term, but ultimately provides no benefit.
Usually, the party starting court proceedings has to have the initial court papers (such as an Application or Motion to Change) served on the other party personally; that is, they must be given directly to the other party by another person, rather than being sent by mail or some other indirect means.
However, if that other party is evading service, or their whereabouts are unknown, the person starting court proceedings can ask the court to allow “substituted service”. This means that they can seek the court’s permission to serve the other party by some means other than personal service, such as by registered mail, courier, delivery to a third party, email, or message through social media. If the other party’s efforts to evade service are particularly blatant, or if they simply cannot be located, the court may go a step further and dispense with service – that is, the court may decide that the person starting court does not need to serve the other party at all.
Don’t Ignore It
Court proceedings are not a problem that will go away if you just ignore it. If you think the court can’t make an order without you being there, you’re wrong. As mentioned above, if you don’t respond, you may be noted in default and denied the opportunity to participate. If that occurs, the court will, in essence, assume that you did not respond because you agree with what the other party has to say and will make a decision based on whatever information and evidence that party provides.
If, for example, a claim is made for support and you fail to provide information about your finances, the court can impute income to you. This means, that the judge will take whatever information the other party can give about your income and order support based on an estimate of how much you earn, or how much you are capable of earning. Once that order is made, it can be enforced against you by the Family Responsibility Office by various means, including by garnishing your pay and tax refunds and suspending your driver’s licence.
If an order is made without you, and unless you have a very good reason for not responding to the claim, you may be hard-pressed to convince the court to set it aside.