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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 02-23-2017, 10:35 AM
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Default Affidavit of Service

Hi all,

Quick question (I hope! lol) on the Affidavit of Service. I have had documents served on my ex via courier at her home address but she has not accepted/picked up the documents from the courier yet. As far as I understand, this does not impact my ability to have the Affidavit of Service completed and notarized - and that I could file that. I don't think that I need to have "proof" that she has accepted the documents? I know that the address that I served her at is good - it's her home address - and she did pick up an ExpressPost letter I had sent her a couple of weeks ago, so it's not like she moved.

Any thoughts/suggestions?
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Old 02-23-2017, 11:16 AM
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Hire a real service provider and have them serve it on the other party in person. It isn't that expensive. Then they can do the affidavit of service and it has truly been served.
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Old 02-23-2017, 04:37 PM
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Hi Tayken,

Thanks very much for your response. Yes, I'm very much aware that I could avoid this by hiring a process server but my question is different from that. I'd rather not go that route if I don't have to.

Thanks again!
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Old 02-23-2017, 05:44 PM
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At least in my province, an affidavit of service is specific to an individual, not an address. The server has to attest that s/he served the documents to the individual named (I had to provide a photo of my ex so that the friend who served him could say on the basis of visual identification they believed the ex had been served). I believe that if you try to serve the documents repeatedly and the other person runs away and hides or something, or if the person named in the documents can't be found, you can ask the court for some sort of waiver of service, don't know the technical title.

But long story short, if you sent documents to your ex by courier and she didn't pick them up from the courier, I don't believe she has been legally served and you can't complete an affidavit of service. Process server is the way to go.
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Old 02-24-2017, 10:47 AM
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Quote:
Originally Posted by rmccallion View Post
Hi Tayken,

Thanks very much for your response. Yes, I'm very much aware that I could avoid this by hiring a process server but my question is different from that. I'd rather not go that route if I don't have to.

Thanks again!
No your question is not different than that. The rules of service are very clear in the Family Law Rules. The documents have to be served upon the PERSON. The only person that can serve in absence of a person is a court Sheriff. For that you need an order to allow for this special service.

You can't get around the rules by dropping off the document.

There is only one time this kind of service was allowed that I have ever seen and it was for an emergency motion. Service provider walked into the office of the lawyer, lawyer was hiding and the service provider put the documents on the lawyer's desk and literally took a time-stamped photo of the document and him in the lawyer's office on that lawyer's desk. On the return of the motion the lawyer tried to claim that they didn't get the documents and the lawyer produced the affidavit of service with the photos and the judge LOST IT on the lawyer and adjourned the matter to the afternoon and made the lawyer go back to their office and get the documents off their desk! The judge was so upset that they wouldn't even let the serving lawyer provide a copy in the courtroom. The judge made the lawyer literally go back to their office and get their own copy that was properly served. As well, the Rules allow for you to leave the documents with a lawyer.

Read Rule 6 of the Family Law rules. "Service of Documents". That is what governs your conduct in this matter. If you are not serving a lawyer you have no other option other than personal service. Everything else really is guidelines when serving the other party's lawyer. If no lawyer... PERSONAL SERVICE to the PERSON.
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Old 02-24-2017, 11:05 AM
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Following up to Tayken's response, here's the link to the Ontario Family Law rules:
https://www.ontario.ca/laws/regulation/990114
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Old 02-27-2017, 07:13 AM
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Thanks again for the response. Service IS allowed by courier as per 6.2(b). This is what I have done now - and I have done in the past and service by courier was accepted by the courts. I'm not about to get into a back and forth whether service is allowed by courier or not but I do than you for your responses.

Quote:
Originally Posted by Tayken View Post
No your question is not different than that. The rules of service are very clear in the Family Law Rules. The documents have to be served upon the PERSON. The only person that can serve in absence of a person is a court Sheriff. For that you need an order to allow for this special service.

You can't get around the rules by dropping off the document.

There is only one time this kind of service was allowed that I have ever seen and it was for an emergency motion. Service provider walked into the office of the lawyer, lawyer was hiding and the service provider put the documents on the lawyer's desk and literally took a time-stamped photo of the document and him in the lawyer's office on that lawyer's desk. On the return of the motion the lawyer tried to claim that they didn't get the documents and the lawyer produced the affidavit of service with the photos and the judge LOST IT on the lawyer and adjourned the matter to the afternoon and made the lawyer go back to their office and get the documents off their desk! The judge was so upset that they wouldn't even let the serving lawyer provide a copy in the courtroom. The judge made the lawyer literally go back to their office and get their own copy that was properly served. As well, the Rules allow for you to leave the documents with a lawyer.

Read Rule 6 of the Family Law rules. "Service of Documents". That is what governs your conduct in this matter. If you are not serving a lawyer you have no other option other than personal service. Everything else really is guidelines when serving the other party's lawyer. If no lawyer... PERSONAL SERVICE to the PERSON.
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Old 02-27-2017, 07:14 AM
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Quote:
Originally Posted by dad2bandm View Post
Following up to Tayken's response, here's the link to the Ontario Family Law rules:
https://www.ontario.ca/laws/regulation/990114
Thanks very much, very aware of that link as I used it extensively during my separation process and all of the court filings and court hearings that I did on my own. I'm sure that link will be beneficial to others who aren't aware of them though.
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Old 02-27-2017, 11:18 AM
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Quote:
Originally Posted by rmccallion View Post
Thanks again for the response. Service IS allowed by courier as per 6.2(b). This is what I have done now - and I have done in the past and service by courier was accepted by the courts. I'm not about to get into a back and forth whether service is allowed by courier or not but I do than you for your responses.
It's allowed, except when it's not. Depends on the type of service you are executing (regular vs special). All specified in the rules link provided.
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Old 02-27-2017, 11:28 AM
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It's allowed, except when it's not. Depends on the type of service you are executing (regular vs special). All specified in the rules link provided.
And what you are serving. Contempt motions can't be served like this. Nor can urgent motions. You will always have to ask why you didn't hire a service provider to serve the documents. As well, the court will always provide the other party time to respond. So, doing crappy service does nothing but extend the amount of time you are dealing with this mess.

If you want to execute proper service. Hire a service provider.
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