What Do I Do if My Spouse Evades Service of My Divorce/Court Application?

Written By Allison McAlpine

In Ontario, the Family Law Rules require “special service” of a court application/divorce application.  How special service is to be carried out is governed by Rule 6(3) of the Family Law Rules which provides:

        “SPECIAL SERVICE

         (3) Special service of a document on a person is carried out by,

         (a)  leaving a copy,

         (i)  with the person to be served,

         (ii)  if the person is or appears to be mentally incapable in respect of an issue in the case, with the person and with the guardian of the person’s property or, if none, with the Public                           Guardian and Trustee,

         (iii)  if the person is a child, with the child and with the child’s lawyer, if any,

         (iv)  if the person is a corporation, with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be managing the place,               or

         (v)  if the person is a children’s aid society, with an officer, director or employee of the society;

                 (b)  leaving a copy with the person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;

                 (c)  mailing a copy to the person, together with an acknowledgment of service in the form of a prepaid return postcard (Form 6), all in an envelope that is addressed to the person and                   has the sender’s return address (but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record); or

(d)  leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address.”  

 

Usually, service is carried out by hiring a process server to physically hand a copy of the court/divorce application on your spouse.  The process server will then provide you with an affidavit of service which you can file with the court evidencing the fact that your spouse was served.

 

There are times, though, that people avoid being served.  They may not answer their door, pretend they aren’t who they are, move somewhere you aren’t aware of, or other methods of evading service.   If you have made attempts to serve your spouse and they are evading service then you can bring a motion to the court for “substituted service.”  Basically, what you are asking for in the motion is for the court to make an order permitting you to serve your spouse in a manner other than special service.

 

For the motion you will need to provide evidence showing:

  1. What steps have been taken to locate the person to be served; and
  2. If the person has been located, what steps have been taken to serve the document on that person (a process server can give you an affidavit of attempted service for this); and
  3. That the method of service you are proposing could reasonably be expected to bring the document to the person’s attention. Different ways of substituted service include mail, email, serving a third party who has contact with the spouse, etc.  The method of substituted service you are seeking will depend on the facts of the particular case.

 

If you would like to discuss bringing a motion for substituted service please call our office to book a consultation and we would be happy to help.

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