This ultimate guide to process serving in Canada was curated to enlighten those who are not familiar with the term “Process Serving”.
What is Process Serving?
Service of Process or “Process Serving” as it is often called, is to legally notify all the parties involved in a court case about an action brought against them in court.
How are the parties notified?
The parties involved in a court case are notified by hand-delivering the court documents upon them. The parties can also be notified by other methods such as mailing, emailing, or faxing.
Who notifies the parties?
The person who hand-delivers the court documents personally or by other methods, is known as a “Process Server”. In Canada, anyone above the age of 18 who is not part of the court proceedings can be a process server — can notify other parties involved in a court case. In other words, you the “applicant or plaintiff” cannot serve your own court documents.
Ultimate guide to process serving in Canada
Now that you are familiar with the basic terminologies in process serving, let take a look at what type of court documents are mostly required to be served on parties involved in a court case.
90% of the time, the following documents are usually required to be served:
- Divorce applications (Form 8A)
- Small claims (Form 7A)
As explained above, these documents cannot just be delivered by you on the other party. There are rules/procedures (legal process, a legal way of delivering these documents). If done wrong, the court rulings can be termed invalid, and you could easily lose a case.
Why is process serving even important?
This question might have slipped through your mind at some point in time. The simple answer to this question is:
Is to give everyone involved in a court case the chance to respond ,and prepare an argument or file a defense.
So, to summarize so far:
- To service a legal document on parties involved in a court case is known as process serving.
- Court documents must be given to everyone involved in the court case, whether a civil lawsuit, small claims, divorce proceeding, etc. or to anyone else that the law requires to be served.
- Service of court documents ensures that all parties involved are properly and promptly informed of any open litigation in which they are involved.
- A party is considered to have been served when they officially and legally receive a copy of all relevant court documents. A “party” in this context can be a person, company, entity, or even a governmental body.
Types of service of process
The Canadian law allows you several options to serve legal documents in Canada. No matter what method you chose, the most important thing to remember is to do it according to the rules and procedures.
Personal Service (special service)
This method of service suggest that the process server hand-delivers the court documents directly to the relevant party. In other words, the process server serves the court documents personally on the recipient i.e. defendant. respondent or even the plaintiff . What if the recipient is not physically around to receive the documents? Please, look at the top 10 Questions asked about process serving to find the answer to this question.
Alternative to Personal service (special service)
This method of service suggest that the process server can leave the court documents with a responsible adult member in the same household as the recipient. On the same day or the next day, the process server must mail (registered mail or courier) another copy of the document to the recipient’s place of residence.
Even if this method of service is an option, you must understand when to use it.
Substituted service (regular service)
If for some reasons the process server cannot serve the recipient personally or alternate to personal. You can file a motion to ask for an order to serve the recipient by substituted service i.e. by registered mail, courier, email, fax , or document exchange.
Completing and filing an Affidavit of Service?
An Affidavit of Service is a document that proves that you have served or made every possible attempt to serve the other party with the court documents. This is why process servers are advised to take notes detailing the person they have served, the documents served, the date and time of service, etc.
The Affidavit of Service is only valid if it bears the stamp and signature of a notary service or a commissioner of taking affidavits — implying that the process server swore an oath that he or she indeed served the relevant party with the court documents stated therein.
If, however, the service was unsuccessful (i.e. process server couldn’t serve the recipient after several attempts), the process server must provide a notarized Affidavit of Attempted Service — A legal document explaining all the efforts (attempts) made to serve the recipient, including the dates, time as well as the addresses to which the attempts were made.
The original copy of the affidavit of service or proof of service must be filed with the court that issued the documents that was served, in other for the court proceedings to move forward.
Serving a small claims document
There are different types of claims that can be filed according to Canadian law. The most common type is Small Claims. Small claims are claims filed for lawsuits that involve small amounts of money. The amount stipulated as “small” varies depending form province to province.
According to rules of serving a claim in Canada, a plaintiff can serve the defendant by personal or alternative to personal service.
See our article on How to Serve Small Claims In Canada
Serving a divorce document
By law, the divorce papers come about as a divorce application. The spouse interested in getting the divorce has to file an application with the court for a divorce. The court then processes the application, and issue a certified copy of the divorce application to the applicant which must be served upon the other spouse (respondent).
In Canada, any above the age of 18 who is not involved in the court proceeding can serve a divorce application.
Much like other legal documents, the law allows you an avenue of choices to enable you to serve the divorce papers. These include special service, or regular service i.e. by mail/email, by courier or registered mail, by fax, etc. Whichever option you go by, ensure that it is done properly according to the rules and procedures of serving divorce documents.
Here is more information on how to server divorce papers in Canada.
Serving notice of motion documents
By definition, a motion is a written request requesting a ruling, order or direction in a case. This usually happens before judgement or after a judgement is made on a case. The motion will include the date, time and place where the hearing of your motion will take place before a judge. With the motion granted, you are expected to serve all the parties involved a copy of the motion.
There are two types of motions that you can bring before a court;
- a motion without consent where the two parties are not in agreement with the order that you want the court to make
- and a motion with consent where both parties agree on the kind of order you want the court to make
Serving a motion follows the same procedure as serving any other legal documents. You are, however, advised to ensure that you serve the motion together with the supporting affidavit to all parties involved.
You should file an Affidavit of Service for each party at least three (3) days before the stated date of the motion hearing. In other words, each party must be successfully served, no matter the method, at least three days before the motion hearing date.
I hope this ultimate guide to process serving in Canada has opened your eyes to the world of Process serving? As you can see, it is not as difficult as it may seem. With a clear understanding of the rules and procedures involved in process serving. It should be easy to ensure that all your legal documents are served successfully.
The Canadian law provides for enough avenues that you can explore to ensure that your court documents is served for any kind of case you may have.
Contact us for more information on this and any other inquiries on process serving.