How to Serve my Motion?

[JB514]

Hi all, I hope someone would be able to answer my question. Filed motion to change CS today Oct. 24. Court date is Nov.28. In court, the clerks told me to do a proper service is to serve in person. Sent someone to serve my ex, no one is home and the neighbor said that she is on Vacation, but doesn't know when she is coming back.

So how do I personally serve her? And if she gets documents less than 30 days prior to the Court Date, she can say that she did not have enough time? Or what other options do I have? Thanks

P.S. Proud to say that thanks to this great site and knowledgeable members, I did not retain a lawyer and feel more confident of the process.

[Tayken]

Hi all, I hope someone would be able to answer my question. Filed motion to change CS today Oct. 24. Court date is Nov.28. In court, the clerks told me to do a proper service is to serve in person. Sent someone to serve my ex, no one is home and the neighbor said that she is on Vacation, but doesn't know when she is coming back.

So how do I personally serve her? And if she gets documents less than 30 days prior to the Court Date, she can say that she did not have enough time? Or what other options do I have? Thanks

P.S. Proud to say that thanks to this great site and knowledgeable members, I did not retain a lawyer and feel more confident of the process.

Look up "service provider" on the internet or ask at the court house for the name of a professional service provider. Doesn't cost much. YOu can also fedex / ups the document next day for service and require signature probably too.

[JB514]

Look up "service provider" on the internet or ask at the court house for the name of a professional service provider. Doesn't cost much. YOu can also fedex / ups the document next day for service and require signature probably too.

Thanks tayken. I know all that ^, but she is not in the Country right now so she can't sign. So lets say she gets back in a week and goes to pick up the package at the UPS (since she was not home to receive it) and now her signature is a week later than the date the ups attempted to serve her and less than 30 days left till court date. Also, do Fedex/ups provide affidavits of service?

[ddol1]

This I do have personal experience - I am the one who is not able to make the reply (do the work requested) in the normally alloted time. I asked the lawyer and he said no big deal I already communicated with opposing counsil who agree that I have medical issues and will take longer. My lawyer said that this is normal and no court would accept a "but the other party didn't respond in time!". In this case your ex would say I was out of the country, you were aware and you would be the one getting nailed for not working with your ex for not giving the extra few days to respond.

Have your server record the date in which she signed and perhaps you could mention this to the court clerk as well (that is a guess which would put on record of your willingness to be "fair") and you could just start counting on the day of signature. When I asked my lawyer what is things go over and he said, "nothing will happen if the other party pushes and files the next step - at least in my case, if my ex did that they would be shooting themselves in the foot for attempting to take advantage of my situation".

[JB514]

Thanks DDol. There is NO Communication between us what so ever (not even email, she has mine but she blocked me from all her contacts). I am not looking to be unreasonable and my concern has nothing to do with her responding, but rather with the court date that I have no power of giving her extra couple of days. I am concerned that she uses that technicality to reschedule the date at our 1st appearance and the trip to court would be a waste of my time.

Also, I actually do not expect her to respond since to my understanding you respond only if you have objections/counter offers. Otherwise, she would have to fill out Form Motion to change on consent. And I don't think there is anything to object since I am adjusting my cs annually according to cs guidelines. However, knowing her, she will not make my life easy and would probably not respond. deal with it in court through a duty counselor. But I am concerned that if any lawyer advises her that she was served late, she would not hesitate to use the opportunity to inconvenience me by rescheduling.

[ddol1]

you didn't mention court date, sounded like you were just in the very prelim stages. Yes you need to meet your obligation for timing - the fact that you gave it to your server will be noted so she can't use that agaiinst her. You will find here in doing a search that there are many non co-operative ex's and it reallyt does appear like the court turns their heads when it comes to timing, late submissions and all the like. The court only cares about ensuring both sides get a fair audiance or representation in the process and if it means allowing the opposing party to submit the response on the date of court - and continue (I believe it would be an oral submission on her part (if I remember it would be a speach at the onset to list what she wants at this point) and you slready submitted yours so you would be in the advantage as the judge would have reviewed yours already - you will have to accept the uncertainty of the court process (late and no shows and reschedules) as it is so much a regular thing - goes to what is said here in why the courts are so bogged down and it is so hard to find the next available court date in which both sides are free to attend. Sucks - but you must assume to be ready each time, you will never be caught off guard - EVER.

forgot to mention, if she is 7 days late in getting your docs - she still has a few days to get ready (I believe my guess is she is to get 10 days and her reply to you was to be with in three days of the actual court date???) One thing you should keep in mind is where your ex is at - is there dragging of feet to prolong this or a desire to get this done, even if it ends up in trial...

[Tayken]

Thanks tayken. I know all that ^, but she is not in the Country right now so she can't sign. So lets say she gets back in a week and goes to pick up the package at the UPS (since she was not home to receive it) and now her signature is a week later than the date the ups attempted to serve her and less than 30 days left till court date. Also, do Fedex/ups provide affidavits of service?

You would fill out the affidavit of service and file it attaching the receipt.

Here is where you could have a problem.

If you knew the other party was not in the country when filing and scheduling the date for the appearance. This could be seen as "short service" which is not something one should do.

So, if you had knowledge that the other party would not be able to get service in time and set the date it would be seen as a strategy to short serve the other party on the matter.

If you are really worried. Hire a respected service provider to do the service. If you don't know how to find a service provider just check the yellow pages or go into the FLIC office and ask for a reference to one.

[OrleansLawyer]

I am concerned that she uses that technicality to reschedule the date at our 1st appearance and the trip to court would be a waste of my time.

First appearances are where a clerk tells you what you need to file for a case conference. Nothing substantial will be accomplished.

UPS is not a process server. You will need to have someone - either a friend or someone you are paying - hand her the documents, then swear that they have done so.

[Tayken]

First appearances are where a clerk tells you what you need to file for a case conference. Nothing substantial will be accomplished.

Nor will there be anything accomplished at a Case Conference if the litigants both don't understand the purposes of a Family Law Conference, be it "case", "settlement" or "trial" conference.

UPS is not a process server. You will need to have someone - either a friend or someone you are paying - hand her the documents, then swear that they have done so.

I agree that UPS is not a "process server" but, an allowable method of service under Rule 6 of the Family Law Rules subsection 2 "Regular Service" which explicitly states the following (my emphasis added):

REGULAR SERVICE

(2) Regular service of a document on a person is carried out by,
(a) mailing a copy to the person’s lawyer or, if none, to the person;
(b) sending a copy by courier to the person’s lawyer or, if none, to the person;
(c) depositing a copy at a document exchange to which the person’s lawyer belongs;
(d) faxing a copy to the person’s lawyer or, if none, to the person; or
(e) carrying out special service. O. Reg. 114/99, r. 6 (2).

Under the Rules set forth in Rule 6.(2) UPS (a courier) is a proper method of the service of documentation and it shouldn't be miss construed that you have to service documentation through a "process server" only.

Good Luck!
Tayken

[JB514]

Thanks everyone for your reply, but it did not really answer my question.

DDol- Yes, I did mention the Court date.

Tayken- No, I was not aware that she is out of country. I only found out when I had a friend go to serve her.

I do know that I will need a process server. My issue is how can a process server serve her if she is out of country and nobody is home? Or do I make a process server go there every day to try to serve her till she is back?

[JB514]

Tayken just saw your last post. I need to serve her by a SPECIAL service, NOT Regular. Thanks

[Tayken]

I do know that I will need a process server. My issue is how can a process server serve her if she is out of country and nobody is home? Or do I make a process server go there every day to try to serve her till she is back?

One of these methods under Rule 6.(3):

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 person’s property or, if none, with the Public Guardian and Trustee,

(iii) if the person is a child, with the child and with the child’s 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 children’s aid society, with an officer, director or employee of the society;

(b) leaving a copy with the person’s 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 sender’s 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 person’s 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).

A "process server" knows what to do. Hire one to do the service of the documentation to keep you out of trouble. Every minute you waste time posting to this board is a minute that they can't service the documentation in accordance with the Family Law Rules and a minute that can and will be used against you for an adjournment and proper service.

You have been formally advised of the Rules of service, where to find the Rules and as an unrepresented litigant you are expected to read and understand the Rules governing all conduct before the Family Court.

Don't shop for excuses with a judge as to why the service was possibly late and not done properly. The expectation by a judge is you as an unrepresented party to the matter know the Rules, read them and follow them.

Good Luck!
Tayken

[Tayken]

Tayken just saw your last post. I need to serve her by a SPECIAL service, NOT Regular. Thanks

I highly recommend if you are going to be unrepresented in the matter you read the Family Law Rules four times over and understand them. The justice will expect you to understand the Rules. Furthermore, to insure you act in "good faith" in service of documentation, notice of appearances, etc...

[JB514]

Thank Tayken. I know the rule 6 of special service and I understand it perfectly. But option c) was advised against by the court clerk because of the requirement in the brackets "(but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record)". The clerk said that it is RARE that people return that post card to the applicant-therefore, service is invalid.

Option d) does not work for me either because there is no one at the residence to leave the envelop with.

But you are right, I will stop trying to think of excuses she can use to claim improper service. I will send her papers by mail (Option C) by registered mail. This way I will have her signature when she goes to pick it up at post office and take it from there...

[Tayken]

Thank Tayken. I know the rule 6 of special service and I understand it perfectly. But option c) was advised against by the court clerk because of the requirement in the brackets "(but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record)". The clerk said that it is RARE that people return that post card to the applicant-therefore, service is invalid.

Option d) does not work for me either because there is no one at the residence to leave the envelop with.

But you are right, I will stop trying to think of excuses she can use to claim improper service. I will send her papers by mail (Option C) by registered mail. This way I will have her signature when she goes to pick it up at post office and take it from there...

Just pay the 140$ and make it the process server's problem and have them file an affidavit of service.