After 2 minutes from now, you will learn about the top 10 questions asked about process serving. As you may know, Process Serving is not a concept that is widely understood.
However, process serving is a vital link in the judicial system without which, the system would fall to its knees. By simple definition, process serving is the service of legal documents in a legally indisputable way.
A “Process Server” is a person who, understanding the legal process, ensures that time-sensitive documents, including files and court decisions, are served properly (on all parties involved in a court proceeding), and in a timely manner.
A process server may also need to conduct a skip trace search (if they are authorized to do so) along with other critical legal duties such as “filing court documents”.
However, many do not fully understand the term ‘process server’ or even ‘process serving’ which is why we found it necessary to compile a list of the top 10 questions asked about process serving and try to answer them for you. If you need to learn more beyond this list, you can look into our Ultimate Guide to Process Serving.
Top 10 questions asked about process serving
1. What is Process Serving?
As the name may suggest, process serving is the serving of legal documents on the parties involved in a court proceeding. As per Canadian law, each party involved in all forms of litigation needs to be notified of the details of the lawsuit and the actions taken against them in court.
This is done through the delivery of the said legal documents i.e. Plaintiff’s Claims, Court Summons, Application (Divorce), Writs, among others. The importance of this process is to ensure that each party, whatever the circumstance may be, has an opportunity to file a legal defense. This entire process is what is referred to as service of a process or simply, process serving.
2. What is a Process Server?
Since time immemorial, according to the Canadian legal system, there have always been people who carry out the service of process. This is an important step in the legal process without which the case may not proceed. In the past, this was done by members of the judicial system which included police officers, sheriffs, and deputies. In time, it was clear that this was not a role that needed to be taken up by law enforcement as it only added to their already full plate. To remedy this situation, a legal framework was set up that allowed 2 sorts of people to serve legal documents:
- A trusted individual above 18 years (mostly a friend or an associate)
- Or an individual paid to perform process serving/ to serve the legal documents (a process server)
This now defines who a process server is. A Process Server is any trusted individual who is legal of age, charged with the responsibility of serving legal documents upon parties involved in a court case.
Currently, trained members of law firms are charged with this role making it safe and reliable. This works to speed up the law process.
3. Can I Serve My Court Papers Myself?
This is taken from the term “personally serve” which most construe to mean you can serve the legal papers yourself. This is a wrong interpretation.
A common term in the world of process serving is to “personally serve”. Many people mistakenly think that “to personally serve legal documents” means that you can serve the papers yourself.
However, this interpretation is anything but true.
“According to the Canadian rules and procedures of serving legal documents, whether family or small claims court, only a person who is not directly involved in the case can serve legal papers and documents in the given case”.
To put it bluntly, you cannot serve legal documents related to a case that you are involved in, at least not legally. If you try to do this, since it is illegal, the service will be deemed invalid. This could potentially derail your case and take away any chance of the case being ruled in your favor.
4. What Is Affidavit of Service?
Another important term that is used regularly in the world of process serving is “Affidavit of Service or Proof of Service”. Completing, and filing an affidavit of service or proof of service form is an essential part of the judicial system, yet many people do not know what it means.’
An Affidavit of service form is a legal document that proves that a particular court document has been properly, legally, and successfully served to the parties involved in a court case. The affidavit of service form must be signed in front of a Commissioner for Taking Affidavits to ensure legitimacy. The Affidavit of Service, must be filed (in person, online) at the court that issued the documents served.
In Canada, the Affidavit of Service (which is usually obtainable in various formats i.e. Form 8A or Form 6B, and others), typically include the following information:
- Actual names of the parties involved (i.e. defendants, plaintiffs, respondents, applicants)
- Name of the one who served the court papers i.e. process server name.
- The case or court file number
- The name of documents served, for instance, Plaintiff’s Claim, Simple Divorce etc.
- Address at which the service of process took place
- The date and time when the court documents was served
- Method of service i.e. Special Service, Substitute Service, Alternate to Personal, By Courier, Mail, etc.
- The name and address of the court that issued the documents
5. How Much Does Process Serving Cost?
Costs for process serving services can vary from province to province. However, you can expect to pay between $60 and $300 per service of process.
Be advised, however, that process serving includes costs beyond the delivery of the papers or documents. For instance, court filing, skip tracing, the number of attempts (mileage cost), additional service at the same address, rush or overnight service, printing, are issues that attract extra costs.
However, service of process remains a relatively inexpensive part of the legal due process. To get affordable process servers, utilize the court runner app to find process servers near you.
6. What Happens If I Don’t Know the Defendant Or Respondent’s Address?
It is very important to know the address of the person, company, organization, etc. you want to serve with court documents. However, this information may not be easy to acquire, and in some cases, may not be up to date. Luckily, there is a solution to this problem. You can, for instance, use search engines like Google and Bing to get more details about the present address of the defendant(s) or respondents(s).
If that approach fails, you can order a skip trace search in other to locate the “Skip” or you may order a Corporate search to find out the current address of the business.
7. What if the Defendants or Respondent’s Denies Service
It is very common for a defendant or respondent to deny that they weren’t served with a particular court document. If the Process Server confirms and attests to the fact they indeed served the court documents upon the defendants or respondents, that would suffice in the court.
However, if the process server lies about serving the court documents in a certain way in the affidavit of service, that may prevent the case from moving forward or even result in the case getting dismissed. Ofcourse, the process server would be held responsible , and may even be convicted, and sentenced, as that is a criminal offense
8. What Is The Minimum Number Of Attempts In Process Serving?
According to most process servers in Canada, the applicants or plaintiff must provide a proof of diligence if they seek a motion. For example, the process server must make at least three attempts to serve the court documents upon the other party or parties involved in the court case in other for the court to consider your motion. Three attempts seems to be the standard, however, the number of attempts to be made is up to the discretion of the process server.
If it is a rush service i.e. 24hrs deadline, then it may be hard for the process server to make three attempts within a day.
9. What Happens If I’m Not Able to Serve the Other Party?
Serving court documents, either by personal service or any alternative method of service, ends up being unsuccessful more often than you would think. If the person you assigned or process server you hired is unable to serve the court documents on the other party on the first attempt. You can ask them to make second and third attempts.
If after three attempts, the process server is still unable to serve the other party, then you should ask the process server to provide you with an “Affidavit of Attempted Service”.
The Affidavit of Attempted Service is a legal document showing all the events that occurred at the time the process server attempted service.
The Affidavit of Attempted Service form is required if you need to file a motion with the courts to be allowed to carry out a Substituted service. Substituted service enables you to serve the other party by email, courier, mail, fax, etc. This varies from court to court.
10. What Method of Service Should I Choose?
You don’t get to choose a method of service when serving a legal document. Every court documents issued by the court comes along with instructions on how to go about serving it. For example, the court can say that Form XX should be served by:
- Special Service
- Personal Service
- Service by registered Mail
- Service by courier
- Alternate Service
It is important to note that, the method of service can change during the course of service i.e. in situations whereby the other party can’t be served by way of Personal Service, the court may grant your motion to serve the other party by Registered Mail.
DISCLAIMER : This article should not be taken or understood as, a legal advice. It is only meant to enlighten about Process Serving. See a lawyer or paralegal if you seek legal advice
Bonus: How to Find a Process server?
To locate a local process server, download the court runner process serving app. It is possible to find a process server in your current location at an inexpensive cost. Another advantage of utilizing the app is that you can track your service in real-time, and get notified at each stage of the service of process.
This also serves to give you peace of mind because you will stay informed about the progress of your service.
I hope this top 10 questions asked about process serving has answered any questions you may have about serving legal documents. Please, also check out other articles: