There is a lot of paperwork involved in most legal proceedings, and family law matters are no different. In all legal cases, the matter cannot be decided upon unless everyone who is involved knows that a court case related to them is happening, is aware that a particular step in that court case is going to happen and what information will be provided to the court as part of that step, and has enough time to prepare and present their own version of events to the court. This generally occurs in writing, hence the ubiquitous mountains of documents that are associated with legal proceedings.
In family law, this means, for instance, that you cannot file for divorce in court, file for child support, or file for division of property, among other things, without notifying your ex-spouse. They, and/or their lawyer, must get notice, in writing, of everything you do.
The Family Law Rules
Providing the relevant documents to the other parties involved in a legal proceeding is called service. Service in family proceedings is governed by the Family Law Rules.
The Family Law Rules outline which forms and documents must be used for every step of a family law proceeding, and how these documents must be brought to the attention of/served on the other party (i.e. your ex-spouse).
In addition to outlining the rules of service, the Family Law Rules also outline important factors such as timelines for when documents must be served on your ex-spouse and filed with the court, as well as when forms and documents must be served on other individuals or agencies (such as the Ministry of Community and Social Services for any materials filed with an application for child support).
General Rules of Service
Most documents in the family court process can be served via regular service. This means that the document can be served through any one of the following methods:
- Mailing a copy of the document to your ex-spouse or to their lawyer;
- Sending a copy of the document to your ex-spouse or to their lawyer by courier;
- Faxing a copy of the document to your ex-spouse or to their lawyer;
- Depositing a copy at a document exchange to which your ex-spouse’s lawyer or, if none, the person to be served belongs;
- If your ex-spouse consents or the court orders, using an electronic document exchange;
- If your ex-spouse consents, or the court orders, emailing a copy to your ex-spouse’s lawyer, or if none, to your ex-spouse; or
- Using any one of the special service methods, as outlined below.
Where documents can be served via regular service, either you or your lawyer can serve the documents.
Special Rules of Service
There are some documents in family proceedings, including applications or motions to change, that must be served using special service.
Where documents must be served via special service, you cannot serve the document yourself, and the documents must be served by:
- Leaving a copy physically with your ex-spouse;
- Giving a copy to your ex-spouse’s lawyer, so long as the lawyer is willing to write on a copy of the document served that they accepted the document on behalf of your ex-spouse;
- Mailing a copy of the document with a Form 6: Acknowledgement of Service. Your ex-spouse must then sign and return the Form 6 to you;
- Giving a copy of the documents, in an envelope addressed to your ex-spouse, to any adult who lives at your ex-spouse’s address, and then mail a second copy to the address on the same or next day.
For both regular and special service, the court requires that you provide proof that your ex-spouse and all other relevant parties were served with the documents. This is provided through an affidavit of service, in which you must set out when, where, and how the documents were served.
Service via Facebook
Several years ago, the Ontario Superior Court of Justice permitted an ex-husband to serve his ex-wife with court documents through Facebook.
The facts were straightforward. A decision required the ex-wife to pay $28,000 in costs to the ex-husband. The ex-husband filed a motion to obtain clarification on what portion of the costs related to issues of support. The motion was essentially a motion to change, and therefore, was required to be served by special service.
However, the ex-husband served the ex-wife via a Facebook message and email. The court recognized that this was “irregular” however, the ex-husband’s lawyer explained that the ex-wife had not been cooperative in revealing her location, and neither her employers or her family members had been of assistance. In addition, a process server had attempted to serve her at the last address that the court had on file, but had been unsuccessful. A neighbour had told the process server that the ex-wife had not been seen in about half a year. However, the process server knew someone who the ex-wife had responded to on Facebook, and the social media network indicated that she lived in Toronto, though did not indicate exactly where. The lawyer, therefore, served her with the documents via Facebook, and also via email. There had been no bounce-back indicating that the email had not been received, and the lawyer was confident that service had therefore been effective.
The court noted that:
In the circumstances, the court is satisfied that the motion documents have come to the attention of the Respondent or would have if she had not been evading service by keeping others ignorant of her whereabouts, and makes an order approving of service.
Service of Documents in the Age of Social Media
This case was very specific to its facts, and to the difficulties that the ex-husband was having with getting the relevant documents to the wife’s attention due to her deliberate evasion of service. However, there are indications that the legal system is recognizing novel means of service.
Several years ago, the Family Law Rules were amended to allow for service via email or to an electronic document exchange, for documents that can be served via regular service. That was a step in recognizing that traditional methods of service may not always be practical in all circumstances. It will be interesting to see what will happen going forward, and how courts continue to deal with the age-old issue of people who simply evade service, and, in addition, address the incessant growth of technology and social media.
If you have questions about your family law matter, including questions about dealing with a spouse who may be evading service of important documents, or otherwise being uncooperative, or how social media is increasingly interacting with family law, contact Windsor divorce lawyer Jason P. Howie at 519.973.1500 or online.