You’ve seen it dramatized in movies and TV shows, someone is ambushed, and a manila envelope is thrust upon them with the declaration “you’ve been served!” Like most things, the Hollywood version is overexaggerated and does not reflect what typically happens when serving court documents (at least in Alberta).
In Alberta, the rules of service are provided in Part 11 of the Alberta Rules of Court (the “Rules”). The Rules set out the procedures that must be followed when you file certain documents with the court and, more specifically, how those documents should be served to the parties who are involved in the court action. It is important that you follow the proper procedure when serving court documents or it may adversely affect your legal proceeding.
The person who filed the court document is responsible for serving the other parties involved in the legal action. The process to be followed when serving the court document (also commonly referred to as the method of service) within the Province of Alberta largely depends on whether you are serving a commencement document or a non-commencement document.
Commencement documents introduce a legal issue, such as a:
In most family law matters, the parties involved in the legal action are individuals. The Rules for serving commencement documents upon an individual start at Rule 11.5 and state that you can:
There are some cases where the other party in the legal action is not an individual. The Rules distinguish the different methods of service based on the types of litigants (i.e. those who are involved in a lawsuit), which includes individuals, limited partnerships, corporations, litigation representatives, trustees, etc. The Rules for serving commencement documents are largely the same regardless of the type of litigant but provide further detail as to whom should be served in cases where that might not be clear.
Example - if the other litigant is a corporation, Rule 11.9 specifies that you should be serving “an officer of the corporation who appears to have management or control responsibilities…”. When in doubt, confirm who the other litigant(s) is that must be served and see if there is a Rule that provides further direction.
When in doubt, go to the Rules and double check!
Non-commencement documents are filed throughout the course of the legal proceeding and do not introduce any new legal issues. This includes documents like affidavits, disclosure statements, a notice of change of representation, etc. The Rules of service related to serving non-commencement documents within the Province of Alberta start at Rule 11.20. There are a few more service options available when serving non-commencement documents – this is because the other party has already been served and notified of the commencement of the legal matter and, therefore, should expect to receive communications on their legal matter from time to time. In addition to the options provided when serving commencement documents outlined above, you can serve non-commencement documents by:
Regardless of whether you serve a commencement or non-commencement document, it is best if you retain some proof that the document was served and by the proper method – whether that is a delivery receipt when sending e-mails, a courier slip confirming delivery, or otherwise. This is important as the other party in the action has the right to defend themselves and, if they make a claim that they were not properly served, it could derail your litigation or, at minimum, delay it.
Proving that you have served your court document(s) is particularly important in divorce matters as you are required to file an Affidavit of Service to proceed with your divorce. An Affidavit of Service is a court document that serves as proof that the commencement document was served upon the other party. It must be sworn by the person who served the documents and must also confirm:
Per Rule 12.57, you must include a picture of the individual who was served as part of your proof of service any time that you serve a Statement of Claim for Divorce, Statement of Claim for Divorce and Division of Family Property, or Statement of Claim for Divorce and Division of Matrimonial Property.
If you’ve made efforts to serve the document or if it is impractical to serve your document, you can consider applying to the court for a substitutional service order. A substitutional service order allows the court document(s) to be served by an alternate method of service than what is provided in the Rules and that method is decided upon by the court based on the evidence you provide in your application. An application for substitutional service must be accompanied by an affidavit and, per Rule 11.28(2), must:
Example - the other party is intentionally trying to avoid service. You note that they are often online and active on their Facebook page. In your application to the court, and after explaining your efforts to serve the document(s) up to this point, you ask the court to allow you to serve the document(s) via Facebook. The Court is satisfied based on your application and affidavit materials that the proposed method of service would bring the court document(s) to the other party’s attention and grants a substitutional service order to allow you to serve the documents by Facebook message.
Coach My Case has a team of experienced legal coaches who are proficient with the Rules of Court and the various service methods and options in Alberta and British Columbia. With Coach My Case you can also hire your own paralegal to assist you with the process. If you have questions or need more information about serving your Court document(s), call us today for a free consultation.