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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 03-20-2014, 08:24 AM
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Default service of documents - tricky situation

in sept 2013 we had a settlement conference at which ex was present and the judge gave a certain date of March for our next appearance

in beginning of January 2014 the ex disappeared; her friend Mr X sent me an email on her behalf stating she is gone back home (third world) for good.

at end of January she resurfaced "on a short trip" and in an email she confirmed that she will be staying at Mr. X's place, while she came to pickup the little one for access i served her with a motion to change, the address on documents was of Mr. X of course.

at the motion in Feb she did not appear but the Judge gave the same date of March which was given previously.

I now took the documents to Mr X's address which is the last address we have on file, he accepted the service, I came back and mailed another copy to same address as well as sending her the documents via email.

next day Mr. X sent me an email stating that he has no contact with ex since she left and is therefore returning the documents. I had already filed affidavit of service stating she has been served.

I am not sure what to do here?
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Old 03-20-2014, 01:50 PM
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Step 1: read the Family Law Rules

Quote:
REGULAR SERVICE AT ADDRESS ON LATEST DOCUMENT

(5) Regular service may be carried out at the address for service shown on the latest document filed by the person to be served. O. Reg. 114/99, r. 6 (5).
NOTICE OF ADDRESS CHANGE

(6) A party whose address for service changes shall immediately serve notice of the change on the other parties and file it. O. Reg. 114/99, r. 6 (6).
If you are in court, follow the above (or have her noted in default if she has not responded).

If you are starting a new process, do your best to track her down and serve her. You may need to request an Order for substituted service.
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Old 03-20-2014, 02:01 PM
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Originally Posted by OrleansLawyer View Post
If you are starting a new process, do your best to track her down and serve her. You may need to request an Order for substituted service.
You may want to retain a process server and possibly a PI who can track her down or appear as an expert witness that the person in question cannot be located. Demonstrate to the court that you made extraordinary efforts to locate the person and serve the documents.

I saw this recently (PI as process server) and the justice moved the matter to an uncontested trial much faster as a result.

Good Luck!
Tayken
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Old 03-20-2014, 06:17 PM
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Quote:
Originally Posted by OrleansLawyer View Post
Step 1: read the Family Law Rules



If you are in court, follow the above (or have her noted in default if she has not responded).

If you are starting a new process, do your best to track her down and serve her. You may need to request an Order for substituted service.
that makes the situation even more trickier because she did not serve me with a notice of change nor she filed one at court before she moved but i did go to her previous place and witness that she has moved away.

after which i received her email that she has returned on a short trip and will be staying at Mr. X's place, I then put Mr. X's address on the papers and served her in person. so even the court has Mr. X's address on file as the previous order that was typed up and sent by the court had that address on it.

I dont know what Mr. X's email's legal status is where he is informing me that he cannot get in touch with her, i dont know if i need to inform the judge about it.

Quote:
Originally Posted by Tayken View Post
You may want to retain a process server and possibly a PI who can track her down or appear as an expert witness that the person in question cannot be located. Demonstrate to the court that you made extraordinary efforts to locate the person and serve the documents.

I saw this recently (PI as process server) and the justice moved the matter to an uncontested trial much faster as a result.

Good Luck!
Tayken
great idea, only if i were working and could afford it. EI translates into limited means.
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Old 03-21-2014, 08:44 AM
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Quote:
she did not serve me with a notice of change nor she filed one at court before she moved
Her last address is her location for service. It is the party's responsibility to update it with the court.

Do not be abusive ; serve her everywhere she might be. But you may wish to include in any affidavit, "I served the party at XXX, which is valid service based on the rules, and also at YYY and ZZZ where I believe they may live".
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Old 03-30-2014, 01:34 PM
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here is what happened in court.
applicant did not show up as expected, I told the judge that when i filed the affidavit of service i had thought that they had been served but then i received her friend's email that he is not going to show up. however i did send her the documents via email.

the judge asked to see the email, I said i had it on my tablet & phone, the judge came down to me and saw the email i had sent on my phone, she then asked how would she know if thats actually the applicant's email, i then showed her applicant's last two emails. that satisfied her.

she then noted it down in her endorsement that she has seen the email and verfied that applicant has access to the email address thus applicant has been served via substituted service. - i.e. service via email was accepted.
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