By Brittany Koenig, Paralegal Navigator, Calgary
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.
Serving Court Documents
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
Commencement documents introduce a legal issue, such as a:
- Statement of Claim / Statement of Claim for Divorce / Statement of Claim for Divorce and Division of Family Property
- Claim – Family Law Act
- Family Application / Applications
- Counterclaim
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:
- leave the document with the individual – this is the most common method of service. You can either serve the documents on the other party(s) yourself or you can have a third-party do it. It doesn’t matter who necessarily, as long as that person is over the age of majority and is of sound mind. Professional process servers can also be hired to serve documents on your behalf, and you can find lots of options in your area or in the area of the person you are trying to serve through a simple Google search; or
- send the document via recorded mail addressed to the individual - recorded mail includes registered mail or couriers, basically any mail service that allows you to track and receive a proper acknowledgement of receipt. In these instances, and specifically when serving commencement documents, service is effected when you receive an acknowledgement from the mail service provider that was signed by the other party confirming they’ve received the document(s).
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
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:
- Electronic method – NOTE: this method of service can only be used if the other party has specifically provided an electronic address where you can send information regarding their legal matter. This would be an email address they have used as a contact address in a court document that they have filed. The reason behind this is because the court wants to make sure that the information or data you are sending to the other party is going to be sent to an electronic address that is active and being monitored by the other party and that it is reasonable to assume they would receive it (even if they don’t respond); and
- Recorded Mail – this Rule is expanded when serving a non-commencement document. When you serve a commencement document via recorded mail, service is effected on the date that the other party signs the receipt acknowledging that they have received the documents. With non-commencement documents, service can also be effected 7 days after the date that the recorded mail was sent.
Proof of Service
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:
- the name of the person served,
- that they verified that the person they served was the proper person to be served,
- what documents were served, and
- the date / time / location where the person was served.
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.
Substitutional Service
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:
- set out why service is impractical,
- propose an alternate method of service, and
- provide an explanation as to why your proposed alternate service method will be effective in bringing the Court document to the other party(s) attention.
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.
