Divorce 101

You’ve Been Served! Or Have You? The Rule in Family Law Cases

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Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

You’ve Been Served! Or Have You? The Rule in Family Law Cases

Once in awhile, there will be a scene in a movie where the main character gets served with court documents by surprise.   He or she opens the door to find a process server – sometimes dressed in disguise as a flower or pizza delivery person – who hands them some paperwork and then walks away.

This is how it works in the movies.  But under Canadian Family law, there are special rules around the service of documents.

These rules were the partial focus of a recent case.  The father asked the court to set aside a Final Order that had been recently made by a court in his case.  He claimed that he had never been properly served with notice of it.  In fact, he said he never received notice that the mother was even launching the initial court application in the first place, or a later amended one.   He used this to explain why he had failed to show up for earlier hearings in their Family law proceedings.

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Although there were several issues in the 8-day trial between the mother and the father, the court said that the “question of whether the father received notice of the initial proceeding took up about half of the trial time in this case and it consumed a considerable amount of the time spent during the closing argument.”

The court reviewed the relevant legal principles for cases where the method of serving court documents is challenged.   As they applied to the facts of the case before it, the court itemized those legal principles as follows:

  • The father bears the ultimate burden of proving that the Final Order should be set aside.
  • However, the mother has the initial burden of proving that he was indeed served with notice of the initial application and related documents.
  • If the mother had the documents served in accordance with the Family Law Rules, this will not be difficult: – a sworn Affidavit of Service (usually from an independent process server) will generally be sufficient.
  • If the mother used a process server, or some other person who served the documents, then it is generally prudent for her to call that person to testify at trial to provide evidence.

Assuming the mother met the initial burden in this fashion, then the onus shifts back to the father, to rebut her evidence that the service took place. Once that happens, the father has to come up with evidence of his own;  a bald denial of service, without any corroborating evidence, will likely not be persuasive.

The court added that the question of precisely what it will take for the husband to rebut the evidence of service will vary with the circumstances of the case.  He cannot rely on a mere technical defect in service.  For example, if the mother’s forms were incorrectly prepared, or if she did not follow the technical requirements of service to the letter, then this will not suffice if the father received actual notice of the mother’s proceedings in some other way.

After applying these principles to the facts of the case, the court concluded that the father did, in fact, receive notice of both the mother’s initial proceeding and the Final Order, and – contrary to his stated position at the time – this did not give him a good reason not to come to court for the scheduled hearing at the time.

For the full text of the decision, see:

E.S.R. v. R.S.C., 2019 ONCJ 381 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.