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-   -   motions... not served??? (http://www.ottawadivorce.com/forum/f3/motions-not-served-14208/)

searching 01-26-2013 02:34 AM

motions... not served???
 
New to the forums and trying to find answers about motions. my wife filed a motion for temporary custody 3 weeks ago but I haven't been served? I only know this through a relative. how long does it take to be served and what happens if I'm not served? is the motion still legitimate?

firhill 01-26-2013 04:25 AM

How does the court know that a party was served?


ē The person who serves the party must complete a Form 6B: Affidavit of service and it must be filed with the court.
ē The affidavit of service must be sworn or affirmed before a justice of the peace, lawyer, notary public or someone designated as a commissioner for oaths. Some court staff are able to commission court documents.



RULE 6: SERVICE OF DOCUMENTS


METHODS OF SERVICE
6. (1) Service of a document under these rules may be carried out by regular service or by special service in accordance with this rule, unless an Act, rule or order provides otherwise. O. Reg. 114/99, r. 6 (1).
AGE RESTRICTION
(1.1) No person shall serve a document under these rules unless he or she is at least 18 years of age. O. Reg. 6/10, s. 1.
REGULAR SERVICE
(2) Regular service of a document on a person is carried out by,
(a) mailing a copy to the personís lawyer or, if none, to the person;
(b) sending a copy by courier to the personís lawyer or, if none, to the person;
(c) depositing a copy at a document exchange to which the personís lawyer belongs;
(d) faxing a copy to the personís lawyer or, if none, to the person; or
(e) carrying out special service. O. Reg. 114/99, r. 6 (2).
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 personís property or, if none, with the Public Guardian and Trustee,
(iii) if the person is a child, with the child and with the childís 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 childrenís aid society, with an officer, director or employee of the society;
(b) leaving a copy with the personís 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 senderís 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 personís 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. O. Reg. 114/99, r. 6 (3).


RULE 14: MOTIONS FOR TEMPORARY ORDERS


DOCUMENTS FOR A MOTION
(9) A motion, whether made with or without notice,
(a) requires a notice of motion (Form 14) and an affidavit (Form 14A); and
(b) may be supported by additional evidence. O. Reg. 114/99, r. 14 (9).

RESPONSE TO MOTION FORM
(10.1) If a party uses a motion form (Form 14B) and no person served with the motion form serves and files a response within four days after being served, the motion shall be dealt with by the court as an unopposed motion. O. Reg. 383/11, s. 3 (2).
WHERE NO REPLY PERMITTED
(10.2) A party who uses a motion form (Form 14B) and who is served with a response to it may not serve or file a reply. O. Reg. 383/11, s. 3 (2).
MOTION WITH NOTICE
(11) A party making a motion with notice shall,
(a) serve the documents mentioned in subrule (9) or (10) on all other parties, not later than four days before the motion date;
(b) file the documents as soon as possible after service, but not later than two days before the motion date; and
(c) file a confirmation (Form 14C) not later than 2 p.m. two days before the motion date. O. Reg. 114/99, r. 14 (11); O. Reg. 202/01, s. 4 (2).
NO LATE DOCUMENTS
(11.1) No documents for use on the motion may be served or filed after 2 p.m. two days before the motion date. O. Reg. 202/01. s. 4 (3).
MOTION WITHOUT NOTICE
(12) A motion may be made without notice if,
(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(b) there is an immediate danger of a childís removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
(d) service of a notice of motion would probably have serious consequences. O. Reg. 114/99, r. 14 (12).
FILING FOR MOTION WITHOUT NOTICE
(13) The documents for use on a motion without notice shall be filed on or before the motion date, unless the court orders otherwise. O. Reg. 114/99, r. 14 (13).

WorkingDAD 01-26-2013 10:31 AM

She should serve you first than file it. You better go to court house ASAP and check out what is going on there until it's too late (if it not already).

WD

searching 01-26-2013 11:38 AM

I was definately not served. If she did not file the affidavit saying I was served, does the motion just become inactive? What about if she lied and had a friend claim they served me but didn't? Can I dispute that motion based on the fact I did not even see it? How do I prove I did not receive the motion?
Last question, do I just go into the courthouse and ask if any motions were filed against me lately?

Nadia 01-26-2013 11:59 AM

You should certainly check with the clerks office to see what has been filed and if there is a AOS (Affidavit of Service) completed by the opposing party. Court staff will often not permit filing unless there is a sworn AOS being filed at the same time.

There should have been a Notice of Motion filed at the same time, which would give you details of when the motion is scheduled to be heard.

You can dispute service when you are in front of the Judge. Just explain that you were never served. Most likely if service is disputed you will be within your rights to request an adjournment. You can not be expected to respond to a motion that you have never seen.

The onus is on the party serving to prove they have in fact served the opposing party. That is why it is often recommended that one uses a third party for service - like a court processor, or failing that at least mail the documents via registered mail or UPS whereby a signature is requiired and delivery can be tracked. Having a "friend" serve your papers is a little "iffy" and can be challenged by the party being served. So, "you" do not need to "prove" you have not been served. You simply make it clear that you are disputing service and have her explain exactly how you were served.

If you have time, (after you have checked with the clerks office to confirm motion has been filed along with AOS), you could send a nice email to the opposing party informing her that you have not received a copy of her motion. Thereby providing her with "further" opportunity to carry out service.

yhm 01-26-2013 10:16 PM

It is a lot easier to respond to the motion than to have it be considered in absentia and then to contest the service. If you or your spouse have counsel, contact them. Otherwise, contact the court.


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