How to Serve Divorce Papers in Ontario

Serving divorce papers is a critical step in the divorce process that ensures both parties are aware of and able to respond to the legal proceedings. If you are filing for divorce in Ontario, understanding the rules and regulations around serving divorce papers can help you avoid unnecessary delays or complications. This guide will walk you through the entire process, including the methods of serving divorce papers, legal requirements, and best practices to ensure that service is completed correctly and efficiently.

The Importance of Proper Service in Ontario

What Does Serving Divorce Papers Mean?

Serving divorce papers refers to the process of officially delivering the divorce application and supporting documents to your spouse. This step is essential as it ensures that your spouse is aware of the divorce proceedings and has the opportunity to respond. Proper service is legally required to maintain the fairness and transparency of the judicial process.

Why Is Proper Service Important?

Proper service is important for several reasons:

• Ensures Legal Compliance: Courts require proof that your spouse was formally notified of the divorce.
• Prevents Delays: Incorrect or incomplete service can lead to delays in your divorce proceedings.
• Protects Your Rights: Serving papers correctly ensures that your spouse cannot later claim ignorance of the proceedings, which could complicate or nullify the process.

Legal Requirements for Serving Divorce Papers in Ontario

Who Can Serve Divorce Papers?

In Ontario, divorce papers must be served by someone other than the applicant (the person filing for divorce). This rule is designed to maintain neutrality and ensure that the service is properly documented. Typically, you can use:

• A Friend or Family Member: As long as they are over the age of 18 and not directly involved in the divorce.
• A Professional Process Server: Hiring a professional ensures that the papers are served correctly and that documentation is provided.

Documents That Need to Be Served

The documents that must be served depend on whether you are filing for a simple, joint, or contested divorce. Generally, these include:

• Application for Divorce (Form 8A): The initial document that begins the divorce process.
• Financial Statement (Form 13 or 13.1): Required if financial support or division of property is involved.
• Affidavit for Divorce (Form 36): In uncontested cases, this form helps move the case forward.
• Other Supporting Documents: These may include affidavits or documents related to custody or spousal support.

Methods of Serving Divorce Papers in Ontario

Personal Service

Personal service involves physically delivering the documents directly to your spouse. This method is considered the most reliable form of service, as it ensures that your spouse receives the papers in person.

How to Complete Personal Service:

1. Choose a Process Server or an Eligible Individual: Ensure that the person serving the papers is over 18 and not the applicant.
2. Serve the Papers in Person: The server must hand the documents directly to the spouse and inform them that these are court documents related to a divorce.
3. Complete an Affidavit of Service (Form 6B): The server must complete this document, detailing when and where the papers were served. This form acts as proof that the service was completed correctly and must be filed with the court.

Substituted Service

If personal service is not possible because your spouse is avoiding service or cannot be located, you may need to apply to the court for substituted service. This method involves using an alternative way of delivering the papers, such as:

• Serving a Family Member: Delivering the papers to a family member who lives at the same address as your spouse.
• Email or Social Media: In some cases, the court may allow service via email or social media if other methods have failed.
• Posting in a Newspaper: If no other option is viable, the court may allow service through a public notice.

How to Apply for Substituted Service:

1. File a Motion: Submit a motion to the court explaining why personal service is not possible.
2. Provide Evidence: Show proof of your attempts to serve the papers (e.g., notes from visits, emails, or other communications).
3. Receive Court Approval: Once the court approves your motion, follow the specified method to serve the papers.

Service by Mail or Courier

Service by mail or courier is an option in Ontario but comes with specific requirements to ensure validity:

• Signature Required: The recipient must sign for the package to confirm receipt.
• Tracking and Confirmation: Use a service that provides delivery confirmation and tracking to ensure the papers were received.

Steps for Serving by Mail:

1. Prepare the Documents: Include all required divorce papers.
2. Choose a Reliable Courier or Postal Service: Opt for services that offer tracking and require a signature upon delivery.
3. File an Affidavit of Service (Form 6B): Once delivery is confirmed, the server must complete and submit this form to the court as proof.

Completing the Affidavit of Service

What Is an Affidavit of Service?

The Affidavit of Service (Form 6B) is a document that verifies the divorce papers were served correctly. It includes essential information such as the date, time, location, and method of service, as well as the identity of the person who served the papers.

How to Fill Out the Affidavit of Service

1. Provide Personal Information: The server fills in their name and contact details.
2. Detail the Method of Service: Include the date, time, and place where the papers were delivered.
3. List the Documents Served: Clearly specify which documents were served.
4. Sign the Affidavit: The server must sign the affidavit in front of a commissioner of oaths or notary public.

Serving Papers to a Spouse Who Lives Outside Ontario

Special Considerations for Out-of-Province Service

If your spouse resides outside Ontario but within Canada, you must follow the Interjurisdictional Support Orders Act to ensure proper service. The method of service may vary depending on the province or territory.

Serving Papers Internationally

Serving divorce papers to a spouse outside Canada adds another layer of complexity. International service must comply with both Canadian laws and the laws of the country where your spouse resides. This may involve:

• Using the Hague Service Convention: For countries that are signatories, following this protocol ensures that service is valid in both jurisdictions.
• Engaging Local Legal Professionals: Hiring a lawyer or process server familiar with the laws of the foreign country can facilitate the process.

Steps for International Service:

1. Verify the Country’s Requirements: Ensure that the method of service is acceptable in the foreign country.
2. Submit Documents for Translation: Some countries require documents to be translated into their official language.
3. File Proof of Service with the Ontario Court: Once service is complete, provide the court with an affidavit or other documentation confirming delivery.

Challenges and Solutions When Serving Divorce Papers

What to Do If Your Spouse Is Avoiding Service

If you suspect that your spouse is intentionally avoiding service, consider these steps:

• Hire a Professional Process Server: A professional may have the resources and expertise to track down an evasive spouse.
• Apply for Substituted Service: Present evidence to the court that you have made reasonable efforts to serve your spouse and request permission for an alternative method.

Dealing with Incorrectly Served Papers

If papers are not served according to the legal requirements, your spouse could challenge the validity of the service. To avoid this:

• Double-Check Requirements: Ensure all steps comply with Ontario’s rules for service.
• Complete the Affidavit Accurately: An incomplete or incorrect affidavit can lead to disputes and delays.

Common Mistakes to Avoid

• Serving the Papers Yourself: As the applicant, you are not allowed to serve the papers.
• Incomplete Documentation: Ensure all required documents are included when serving papers.
• Failure to Confirm Receipt: When using mail or courier, choose a service that provides a signature or delivery confirmation.

What Happens After Serving Divorce Papers?

Next Steps for Your Spouse

After receiving the divorce papers, your spouse has a set amount of time to respond:

• Within Canada & US: The response must be filed within 30 days.
• Outside Canada: The response period is extended to 60 days.

Failure to respond within these timeframes can result in the court proceeding with a default judgment, where decisions are made in your favor without your spouse’s input.

Filing Proof of Service with the Court

After serving the papers, the completed Affidavit of Service (Form 6B) must be filed with the court to demonstrate that service was completed correctly. Without this proof, the court cannot move forward with your case.

Seeking Legal Assistance

Should You Hire a Lawyer to Assist with Serving Divorce Papers?

While it’s possible to serve divorce papers without legal assistance, working with a lawyer can simplify the process and ensure compliance with all legal requirements. A lawyer can:

• Advise on the Best Method of Service: Depending on your spouse’s location and circumstances.
• Help File Motions for Substituted Service: If your spouse is difficult to locate or serve.
• Review Documentation: Ensure that all forms and affidavits are completed correctly to avoid delays.

Choosing a Process Server

If you decide to hire a professional process server, choose a reputable and experienced service. A good process server can provide affidavits of service, offer tracking updates, and increase the likelihood that your papers will be served correctly and efficiently.

Conclusion

Serving divorce papers in Ontario is an essential step that sets the foundation for the entire divorce process. By understanding the methods, legal requirements, and potential challenges, you can ensure that service is completed accurately and within the required timeframe. Whether you choose to handle the process with the help of a friend, family member, or professional process server, following these guidelines will help you navigate this critical phase with confidence.

For complex cases, especially those involving out-of-province or international service, consulting with a lawyer can provide added assurance that the service is compliant with Ontario law. Ensuring that your divorce papers are properly served will prevent delays and protect your rights as you move forward with your divorce proceedings.