You landed here because you want to know how to serve divorce papers in Canada? As you may know, divorce, the legal separation of two married people, has become such a common occurrence that it is now a defining trait in our generation.
Current statistics show that more than 40% of marriages end up in divorce. However, common as it may have become, you cannot just up and do it yourself; not without a clear understanding of what the law demands.
How to serve divorce papers in Canada
Though this article focuses on how to serve divorce papers in Canada, before that, let’s look at how to file for divorce according to Canadian law.
Application for a Divorce
Like any other legal document, a divorce application has to be filed in court. The spouse asking for a divorce is the one who starts the legal proceedings and thus, has to file the divorce papers in court. In some provinces, the divorce petition acts in two ways:
- The petition informs the court of the possible dissolution of the marriage of the individual filing
- The petition initiates the legal proceedings towards the divorce
For a divorce petition to be legal, there are some details it must entail:
- Legal identification of both spouses, detailing their names and addresses
- the date when the marriage became legal; date of wedding or signing of marriage papers
- Legal identification of the children born to the marriage or any other dependents
- Evidence that both parties have in the province for ample time to allow them to file for divorce in that jurisdiction
- Legal grounds for divorce; may vary from province to province. For instance, in Canada, legally recognized grounds for divorce include cruelty, dissertation, adultery and the couple must be separated for at least one year.
Ensure that your application contains all the details necessary before filing. You also need to be clear on the type of divorce application you want to do:
Types of divorce applications in Canada
Divorce applications come in two forms in Canada. These include:
- Simple / Uncontested divorce: Here, one spouse (applicant) files for divorce, and serves the divorce application on the other spouse (respondent).
- Joint/ Uncontested divorce: Here, both spouses file a joint application for divorce in court. Thus, both spouses don’t need to serve the divorce application on the other as they are both applicants.
- Contested divorce: As the name suggests, here both spouses do not agree on certain claims such as child custody, support, division of wealth/property and debt. The disagreement could also be on the divorce itself. One spouse might want the divorce while the other does not.
Consult a lawyer or paralegal before you decide what type of divorce to file.
Serving the divorce application
Once you have filed for the relevant divorce application, you need to serve your spouse with the divorce papers. To do this right by law, you need to ensure that you serve your spouse with the application for divorce , together with any other papers you used to start the divorce application.
Some laws govern how any legal papers can be served in Canada. By law, you have a number of options for serving divorce papers. You can serve by :
- By mail/email: you can mail the application to your spouse’s lawyer or directly to them through their registered address.
- By courier: you can have the papers delivered to your spouse or their lawyer
- By fax: this is another way that is recognized by law. Again, the fax can go directly to your spouse or to their lawyer
- By document exchange: if your spouse or their lawyer is prescribed to a document exchange, you can use this to serve the papers where they can receive and download the documents
If you choose to serve the documents yourself, then we suggest that you read up on the rules and procedure for serving legal documents in Canada. See our Ultimate guide to serving legal documents.
We, however, advise that you make use of the services of a professional process server via court runner .
A process server is an individual who is skilled at serving legal documents according to the laws stipulated by the Canadian government. A process server must:
- Ensure that they give a copy of the divorce application to your spouse by the method of service instructed by the court. If your spouse’s address is unknown, a process server can help locate the address of your spouse by performing a “skip trace search“.
- Fill out and notarize the affidavit of service/proof of service
- provide you with the proof of service to file at the court so the divorce proceedings can move forward.
Have any questions about process serving? Click the following link to learn about the Top 10 Most Frequently Asked Questions About Process Serving.
Filing the affidavit of service at the court
The Affidavit of Service (AOS)/ Proof of Service (POS) is a document that is notarized by a commissioner of taking affidavits to show that the respondent was legally served. The AOS or POS has to be completed by the person who served the legal documents i.e. Process Server. If the AOS is not filled out properly it may delay the divorce proceedings or impede it from moving forward.
The Federal Law in Canada governs divorce processes under the Divorce Act. That said, the management and expedition of divorce applications are done by the province and territory where you apply for divorce.
Therefore, you must file the Affidavit of Service (AOS)/ Proof of Service (POS) at the local court that processed the divorce application after the divorce application has been served on your spouse — in other for the divorce proceedings to move forward. Either you or the process server can file the affidavit of service.
If the court accepts the AOS after filing it, all you will then need to do is wait. If the divorce application requires your spouse (respondent) to file an answer with the court within a specified time, then, you have to wait for the period of time stipulated by the court.
If the application is a joint/uncontested divorce, then you simply need to wait for the court’s to give the divorce order.
You can follow up on the status of your divorce application checking your email for communication from the court or by completing a search request form (HTML) (PDF), and sending it in through the address stated on the form.
Check out other topics: