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niagaramom · #1 07-15-2015, 09:44 AM

Not urgent but my friend and I were having a discussion about serving documents to ex-spouses. Several years ago my friend had her brother (age 27) attempt to serve her ex-husband with a Form 15 Motion. She said her brother tried to hand the papers to the ex but the ex refused to accept them and walked away. My friend subsequently had a process server complete the service a few days later. I maintain that if you are face to face with the person and he won't accept the documents, just dropping them at his feet constitutes service. Am I correct? I have been fortunate that when I was going through our initial divorce proceedings that I was able to have a relative personally serve my ex all court documents. My ex never refused to accept the documents. But it is an interesting question. What happens if he won't take the papers? My friend and I scoured the internet for an answer with no luck. We found a lot of American answers but no set answers for Ontario. I stand by my answer of just dropping it in front of him. An answer could be helpful to someone who won't have a family member attempt service for this very reason. Thank you all.

HammerDad · #2 07-15-2015, 11:12 AM

If you were talking about Small Claims Court, you would be correct. As for family court, I am not sure. I think if the other party refused to acknowledge service, you may have to file a motion in court for alternative service.

Looking at the affidavit of service form listed here: http://www.ontariocourtforms.on.ca/english/family

It does not appear to provide for the form of service you suggest.

niagaramom · #3 07-15-2015, 11:27 AM

I am referring to a Family Court Motion. On the affidavit of service, why can't you check " Special Service" and check "by leaving a copy with the person." You were face to face, dropped the documents in front of him and left. He knew they were court documents and whether he wants to pick them up is his choice. It is as I said, an interesting question. Hope someone can shed some light on it. I know there will be differences of opinion, because I don't think there is anything concrete to go by, unless there is some case law where someone disputed service in this manner. We are going to keep looking. Our curiosity has got the better of us.

HammerDad · #4 07-15-2015, 12:02 PM

Quote:

Originally Posted by niagaramom

I am referring to a Family Court Motion. On the affidavit of service, why can't you check " Special Service" and check "by leaving a copy with the person." You were face to face, dropped the documents in front of him and left. He knew they were court documents and whether he wants to pick them up is his choice. It is as I said, an interesting question.

I am no expert, but I think that one must get permission to use "special service". Either that, or simply that there is a whole lot more at stake in a family law matter than a small claims matter.

stripes · #5 07-15-2015, 05:02 PM

I seem to recall reading somewhere that in this situation, you can fill out an affidavit to the effect that you attempted service but it was refused, which takes the place of an affidavit of service. Any consequences from refusal fall on the party who refused service. However, I can't remember where I saw this. I believe it can also come into play when documents are served at the party's place of work and the party refuses to pick them up from reception (or wherever).

YoungDad23 · #6 07-15-2015, 06:30 PM

I was told by a paralegal that dropping family court documents at the person's feet counted as service while I spent months trying to locate and have a family member serve my ex with my application for custody. (She eventually accepted service from my dad but it took 3 months).

When our case management judge recognized my ex was playing games and had intentionally avoided service in the past, I was given permission for special service for subsequent documents.

I was instructed to make two attempts at her address on the day of the service deadline (at least one hour apart) and if she didn't open the door, I was then to leave it on her doorstep and consider her served.

mcdreamy · #7 07-15-2015, 06:39 PM

Quote:

Originally Posted by YoungDad23

I was told by a paralegal that dropping family court documents at the person's feet counted as service while I spent months trying to locate and have a family member serve my ex with my application for custody. (She eventually accepted service from my dad but it took 3 months).

This is correct, IF the server can swear that the identity of the recipient is the one intended to be served - and, of course, that affidavit is contained in Form 6B where they swear that they left a copy with the person.

HammerDad · #8 07-16-2015, 08:52 AM

Quote:

Originally Posted by YoungDad23

I was told by a paralegal that dropping family court documents at the person's feet counted as service while I spent months trying to locate and have a family member serve my ex with my application for custody. (She eventually accepted service from my dad but it took 3 months).

Reading "paralegal" makes me believe you were talking to a small claims court representative. Paralegal's are prohibited in family law. Now, if could mean you meant law clerk who works for a lawyer who practices family law.

Quote:

When our case management judge recognized my ex was playing games and had intentionally avoided service in the past, I was given permission for special service for subsequent documents.

I was instructed to make two attempts at her address on the day of the service deadline (at least one hour apart) and if she didn't open the door, I was then to leave it on her doorstep and consider her served.

I think the biggest part of the above is that the court granted leave for special service. Because before that, you wouldn't have been entitled to serve in such manner.

YoungDad23 · #9 07-16-2015, 11:48 AM

Quote:

Originally Posted by HammerDad

Reading "paralegal" makes me believe you were talking to a small claims court representative. Paralegal's are prohibited in family law. Now, if could mean you meant law clerk who works for a lawyer who practices family law.

This person was trained as a paralegal but was currently working as a law clerk in a family law practice. She had also been a process server during her career.

One of her best suggestions was to buy a pizza and knock on the door calling "Pizza Delivery". When the person avoiding service opens the door to say they didn't order a pizza, slip the documents on top and hand them the pizza telling them they have been served!

YD23

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