Provincial or Supreme Court
How to arrange for alternative (substitutional) service
If the other party is avoiding service or not available
Court rules often require a document to be personally served on the other party. If you can't have the documents personally served because you can't find the other party or because they are repeatedly and deliberately avoiding the process server, a judge or master may make an order allowing you to serve the documents in another way.
If you're in this situation, you need to apply for a court order to allow you to use an alternative method of service so you can proceed with your case. This is called an "order for substituted service." The order you get should allow you to move forward with the main issue in your case, such as getting a parenting order or changing the amount of support.
To get the order for substituted service, you must provide good reasons why you can't personally serve the documents as required by the court rules. You must give your reasons in a sworn affidavit or in person before a judge/master. To be successful, you must convince the judge/master that:
- you thoroughly searched for but can't find the other party,
- the other party is avoiding service (deliberately hiding from the process server or avoiding acceptance of the documents in some way), or
- the other party is temporarily out of BC.
Probably the best way to prove that you've thoroughly searched for the other party is to hire a process server to deliver the documents. Process servers are experienced in finding people and delivering documents. If the process server can't deliver the document, they will provide you with a detailed affidavit explaining the efforts made. The affidavit will also state whether the process server believes the person is deliberately hiding so as not to receive the documents, or is temporarily out of BC. Process servers will prepare an affidavit for you to take to court as part of the service they provide.
If you can afford a process server, it's a good idea to hire one before applying for an order for substituted service. Also ask the court registry where you can find an enforcement officer to help you. Under section 238 of the Family Law Act, an enforcement officer may demand information about the address and employment of a proposed party in a family law case from any person, including from government agencies.
You must take these steps first, because the judge/master won't make an order for alternative service if he or she doesn't believe you've tried hard enough to find the other party.
You need to file your own Affidavit (Form F30) in addition to your process server's affidavit (if you used one). Your affidavit must clearly state:
- you have no further information about how to find the other party;
- what steps you've taken to find the other party;
- whether you hired a process server and, if not, why not;
- what efforts have been made to serve the documents;
- the last information you have about where the other party is (his or her last-known address or location and when he or she was last there) and the source of that information;
- if you don't know the other party's address or location, any available information about where he or she might be, or the name and address of anyone who might be able to get in touch with him or her; and
- how you now want to serve the documents.
You must present a reasonable plan to the judge/master for delivering the documents so they'll get to the person you need to serve. For example, if you believe that the other party would definitely receive the documents if you gave them to his or her mother, include that information in your affidavit. Include her name and address, as the judge/master will need to include those details in the order. If you have a mailbox number, address, fax number, or email address for the person to be served, include that information, and ask if you may serve the person by mail, fax, or email. You can also ask if the person may be served by taping a notice to his or her door.
If you have no contact information at all, and you don't know of any family members, friends, employers, or other acquaintances who could bring the application to the other party’s notice, you must state this in your affidavit. Under these circumstances, you could ask if you can serve the documents by posting an advertisement in the newspaper in the community where you believe the other party lives. You must draft the announcement in the proper format: for Supreme Court cases, a Notice for Publication (Form F11); for Provincial Court cases, a Notice by Advertisement (Form 12). You must also pay for the costs of the advertisement.
You could also ask the judge/master to allow you to serve the other party by posting a copy of your Notice of Family Claim (Form F3 in Supreme Court) or Application to Obtain an Order (Form 1 in Provincial Court) in the court registry. This is the cheapest method of alternative service, but you must first make every effort to find the other party (and be prepared to prove that you've done so).
If the judge/master agrees to allow you to serve the documents this way, he or she will specify how long the documents must stay posted at the court registry. You'll have to take the order for substituted service and a copy of your Notice of Family Claim (Form F3 in Supreme Court) or Application to Obtain an Order (Form 1 in Provincial Court) to the court registrar. The registrar will date stamp the documents for you to put up on the board. You'll have to take them down again. Different courts may have different procedures for doing this. Ask at the court registry how to proceed.
Important: If you get an order for substituted service, you must serve the document exactly as ordered and include a copy of the order with the documents to be served, unless the judge/master says otherwise.
For more information about other ways to serve documents, see the JP Boyd on Family Law website.