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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 11-22-2005, 11:46 AM
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Default Process Serving and Affidavit Of Service

Hey all...

Trying to get a bit of info from someone in Ontario who may know this... I am trying to have my ex served with a motion to change custody and the hearing is sched. for friday the 25th of nov... If in the event that the process server cannot serve her in time (four days before the hearing), wondering what my options are...

I've been reading that in the case that someone cannot be served or who may be avoiding service, I can make a motion to have the hearing changed to a motion without notice... Would this be a separate motion that I would have to file apart from the original motion already scheduled, or could I some how have it attached to the one already filed with the court...

also in the event that I don't take this route, will my hearing be pushed back until such time as I can serve her?

Really frustrated, I am, as I am doing all this myself. Thoughts?
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Old 11-22-2005, 12:52 PM
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you could serve her lawyer and in fact I believe you are supposed to serve the lawyer on record. If she has changed lawyers, they have to notify you and there is a special court form for this

Using a process server is good, as they will fill out the affidavit of service and can verify that attempts where made of service of documents.

Most likely they will probably adjourn the motion and ask you to serve her. The reason for this is that she is the custodial parent is holding the current custody card.

An ex parte motion without notice is dangerous. Make sure you disclose everything in your affidavits etc the good and the bad and the ugly if that is the route you go.

They may not allow any motions until a case conference has been held. Generally they hold a case conference before a motion to change a final order. I would think you would serve her with a case conference brief first before the motion documents.

I am unclear why your having difficulties in locating her as you should be aware of where you child resides with the other parent. Do you not pick up the child?
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Old 11-22-2005, 12:56 PM
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Okay, I got the details now, read the other thread. She is out of province so you really have no other choice and go ahead with the motion. You also expect she will be a no show due to the distance involved. If the process server cannot locate her, he will do up an afiidavit of service. You could try contacting the CAS for her address too. Either way, you will have an affidavit of service confirming what has been done for the service of documents.

Most likely they will allow the motion without notice under the circumstances
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Old 11-22-2005, 01:01 PM
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Quote:
Originally Posted by logicalvelocity
you could serve her lawyer and in fact I believe you are supposed to serve the lawyer on record. If she has changed lawyers, they have to notify you and there is a special court form for this
I'm certain she does not have a lawyer, which is why I was serving her personally. If I cannot afford one, certainly she could not.

Quote:
Originally Posted by logicalvelocity
Most likely they will probably adjourn the motion and ask you to serve her. The reason for this is that she is the custodial parent is holding the current custody card.
Even if the child is currently in Foster Care?

My question is: do I go ahead and file the confirmation 14C form on wednesday and the affidavits of service I *do* have (to gov't agencies) and wait until the day of the hearing to tell the court that I was not able to serve her?

Quote:
Originally Posted by logicalvelocity
An ex parte motion without notice is dangerous. Make sure you disclose everything in your affidavits etc the good and the bad and the ugly if that is the route you go.

They may not allow any motions until a case conference has been held. Generally they hold a case conference before a motion to change a final order. I would think you would serve her with a case conference brief first before the motion documents.
Since my child is in foster care, my argument is that the motion is urgent, so I was hoping that there would be some quicker way to do this... possibly not the ex parte route, but perhaps a notice by advertisement... but if I decide to go ex parte i can get the affidavit of attempts from the process servers and hope that is enough... ??

either way it looks like i am going to be held over...

Quote:
Originally Posted by logicalvelocity
I am unclear why your having difficulties in locating her as you should be aware of where you child resides with the other parent. Do you not pick up the child?
She lives in BC and I live in Ontario, so I don't pick her up, unfortunately... The address for service was culled from a BC court document that I received pertaining to my child's removal from the household into foster care. It's my impression that she got wind of what I was doing, since the process server told me he knocked on a neighbours door first and that neighbour may have informed my ex that someone was looking for her.
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Old 11-22-2005, 01:16 PM
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If attempts were made to serve her at a certain address, and you have the affidavit of service to proove this, they may likely allow the motion go ahead because of the distance involved and of the material change and the urgency. Go ahead and file the confirmation. The form allows comments that you can make. The judge reads this directly. All that can happen is that they won't hear the motion and schedule an adjournment until she has been served. Technically she doesn't have custody of the child right now so this would construe to be a material change.
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Old 11-22-2005, 01:38 PM
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Excellent. That sounds reasonable.

I'm assuming that i am checking the box on the 14C that says I was unable to contact the opposing party in this case, and stating the reasons why, attaching to it the affidavit of attempted service, and filing it along with all original copies of the other documents in this case? Also, I am indicating that I am going ahead with all the issues? Finally what's all this stuff about the judge should read pages/tabe of the continuing record... do I fill that out or does the clerk? Time estimate?? this form is confusing...
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Old 11-22-2005, 06:59 PM
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If the child is in foster care, would'nt he have to serve CAS as well, since technically they have custody?

Just a thought.
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Old 11-22-2005, 08:16 PM
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Quote:
Originally Posted by Grace
If the child is in foster care, would'nt he have to serve CAS as well, since technically they have custody?

Just a thought.
it's a good one... but I haven't read anything that would seem to make that the case...

and here's another snag, that I could really use a snappy answer on... i heard from the process servers involved that they cannot provide me with the affidavit of attempted service any earlier than tomorrow morning... which is about 12 noon here... and I have to get the court papers filed by 2pm on Ontario... so my question is... Do i have to reschedule the motion hearing because I don't have this document, or would the judge accept, say, a letter from the company stating that I have retained them, and that it's on it's way, etc... the problem is that they can't get to the notary at the mo...
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