BLOG | APRIL 20, 2020

Affecting Service on a Missing Spouse

For anyone that has been through or is considering going through with a divorce, the circumstances surrounding such a decision is usually tumultuous. For most client’s these are trying times. There must be strong personal reasons to go through the legal process of attaining a divorce. Even in a simple divorce, the procedures involved may seem daunting to the uninitiated. This is exacerbated even further when the time between separation and seeking the divorce has been many years. Or if one party has relocated without the knowledge of the other and they have stopped communicating with one another.

Without knowledge of the partner’s whereabouts one of the main procedures – serving the other party with divorce papers – may be impossible to complete. If one cannot serve their spouse with the application for divorce along with other relevant documents this will hinder a client’s divorce in Ontario. However, the courts understand that such a scenario is likely to occur and have put in place rules about serving court documents in this very situation.

Where it is difficult to locate a party to a divorce, the court will assess what steps the applicant took in their attempted service of the responding party. Rule 6 of the Family Law Rules deals with service of documents. Before bringing a motion for substituted service, the serving party will need to exhaust all avenues when trying to serve the documents on the other party. The moving party will need to provide the court with detailed evidence showing what steps they took to locate the person. If located, they need to show what steps they took to serve the documents on that person [Rule 6.15]. Once this is completed the moving party may bring a Motion without Notice along with an Affidavit for substituted service. In some instances, the court may, on motion without notice, order that service is not required if reasonable efforts to locate the person to be served have not been or would not be successful and there is no reasonable method of substituted service [Rule 6.16].

We hope this helps people looking to serve a missing party and if any other inquires in terms of your family matter are required, please do not hesitate to contact our team.

By Vibeeshan Mahendran, L.L.B., B.A (Honours),  Student-at-Law

Photo by Aliyah Jamous on Unsplash

For any inquiries regarding power of attorney or estate matters, you can contact us by email at info@ramachandran.law or by phone at 416-902-8225.

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