Service of documents

Methods of service

6. (1) Service of a document under these rules may be carried out by regular service or by special service in accordance with this rule, unless an Act, rule or order provides otherwise.  O. Reg. 114/99, r. 6 (1).

Age restriction

(1.1) No person shall serve a document under these rules unless he or she is at least 18 years of age.  O. Reg. 6/10, s. 1.

Regular service

(2) Regular service of a document on a person is carried out by,

(a) mailing a copy to the person’s lawyer or, if none, to the person;

(b) sending a copy by same- or next-day courier to the person’s lawyer or, if none, to the person;

(c) depositing a copy at a document exchange to which the person’s lawyer or, if none, the person belongs;

(c.1) if the person consents or the court orders, using an electronic document exchange;

(d) faxing a copy to the person’s lawyer or, if none, to the person; or

(e) emailing a copy to the person’s lawyer or, if none, to the person, subject to any technical or other requirements that the court may specify. O. Reg. 114/99, r. 6 (2); O. Reg. 140/15, s. 1 (1, 2); O. Reg. 235/16, s. 1 (1); O. Reg. 373/20, s. 2 (1).

Special service

(3) Special service of a document on a person is carried out by,

(a) leaving a copy,

(i) with the person to be served,

(ii) if the person is or appears to be mentally incapable in respect of an issue in the case, with the person and with the guardian of the person’s property or, if none, with the Public Guardian and Trustee,

(iii) if the person is a child, with the child and with the child’s lawyer, if any,

(iv) if the person is a corporation, with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be managing the place, or

(v) if the person is a children’s aid society, with an officer, director or employee of the society;

(b) leaving a copy with the person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;

(c) mailing a copy to the person, together with an acknowledgment of service in the form of a prepaid return postcard (Form 6), all in an envelope that is addressed to the person and has the sender’s return address (but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record); or

(d) leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address.  O. Reg. 114/99, r. 6 (3).

Special service — documents that could lead to imprisonment

(4) Special service of the following documents shall be carried out only by a method set out in clause (3) (a), unless the court orders otherwise:

1. A notice of contempt motion.

2. A summons to witness.

3. A notice of motion or notice of default hearing in which the person to be served faces a possibility of imprisonment.  O. Reg. 114/99, r. 6 (4); O. Reg. 322/13, s. 4 (1).

Special service — restriction on who may serve

(4.1) Subject to subrule (4.2), special service of the following documents shall be carried out by a person other than the party required to serve the document:

1. An application (Form 8, 8A, 8B, 8B.1, 8B.2, 8C, 8D, 8D.1, 34L or 34N).

2. A motion to change (Form 15), with all required attachments.

3. A document listed in subrule (4).  O. Reg. 6/10, s. 1; O. Reg. 373/20, s. 2 (2).

Exceptions

(4.2) Subrule (4.1) does not apply if,

(a) the party required to serve the document or the person being served is a person referred to in clause 8 (6) (c) (officials, agencies, etc.); or

(b) the court orders otherwise.  O. Reg. 6/10, s. 1.

Regular service at address on latest document

(5) Regular service may be carried out at the address for service shown on the latest document filed by the person to be served.  O. Reg. 114/99, r. 6 (5).

Notice of address change

(6) A party whose address for service changes shall immediately serve notice of the change on the other parties and file it.  O. Reg. 114/99, r. 6 (6).

Service by mail, when effective

(7) Service of a document by mail is effective on the fifth day after it was mailed. O. Reg. 140/15, s. 1 (3).

Service by courier, when effective

(8) Service of a document by courier is effective on,

(a) the day after the day the courier picks it up, in the case of same-day courier service; or

(b) two days after the day the courier picks it up, in the case of next-day courier service. O. Reg. 235/16, s. 1 (2).

Service by document exchange, when effective

(9) Service of a document by deposit at a document exchange is effective only if the copy deposited and an additional copy of the document are date-stamped by the document exchange in the presence of the person depositing the copy, and then service is effective on the day after the date on the stamp. O. Reg. 140/15, s. 1 (3).

Service by electronic document exchange, when effective

(10) Service of a document through an electronic document exchange is effective only if the electronic document exchange provides a record of service showing the date and time of service, as well as the information listed in subrule (11.4), and then service is effective on,

(a) the date shown on the record of service; or

(b) if the record of service shows that the document was served after 4 p.m., the following day. O. Reg. 140/15, s. 1 (3).

Service by fax or email, when effective

(11) Service of a document by fax or email is effective on,

(a) the date shown on the first page of the fax or in the email message, as the case may be; or

(b) if the first page of the fax or the email message shows that the document was served after 4 p.m., the following day. O. Reg. 140/15, s. 1 (3).

Special service by leaving copy, when effective

(11.1) Special service of a document under clause (3) (a) or (b) is effective on the day the copy of the document was left in accordance with those clauses or, if the document was left after 4 p.m., the following day. O. Reg. 140/15, s. 1 (3).

Special service by leaving copy and mailing, when effective

(11.2) Special service of a document under clause (3) (d) is effective on the fifth day after it was mailed. O. Reg. 140/15, s. 1 (3).

Exception, if effective date is a holiday

(11.3) Despite subrules (7) to (11.2), if the effective date of service under one of those subrules would be a day on which court offices are closed, service is instead effective on the next day on which they are open. O. Reg. 140/15, s. 1 (3).

Information to be included in record of service

(11.4) A record of service for service of a document through an electronic document exchange shall, in addition to the date and time of service, include,

(a) the total number of pages served;

(b) the name and email address of the person who served the document;

(c) the name of the person or lawyer who was served; and

(d) the title or a description of the nature of the document. O. Reg. 140/15, s. 1 (3).

Information to be included with document served by fax

(12) A document that is served by fax shall show, on its first page,

(a) the sender’s name, telephone number and fax number;

(b) the name of the person or lawyer to be served;

(c) the date and time of the fax;

(d) the total number of pages faxed; and

(e) the name and telephone number of a person to contact in case of transmission difficulties.  O. Reg. 114/99, r. 6 (12); O. Reg. 140/15, s. 1 (4).

Maximum length of document that may be faxed

(13) Service of a document or documents relating to a single step in a case may be carried out by fax only if the total number of pages (including any cover page or back sheet) is not more than 20, unless the parties consent in advance or the court orders otherwise.  O. Reg. 114/99, r. 6 (13); O. Reg. 140/15, s. 1 (5).

Documents that may not be faxed

(14) A trial record, appeal record, factum or book of authorities may not be served by fax at any time unless the person to be served consents in advance.  O. Reg. 114/99, r. 6 (14).

Information to be included with document served by email

(14.1) Unless the court orders otherwise, the email message to which a document served by email is attached shall include,

(a) the name of the person or lawyer to be served;

(b) the title or a description of the nature of the document;

(c) the date and time of the email; and

(d) the name and telephone number of a person to contact in case of transmission difficulties. O. Reg. 140/15, s. 1 (6).

Substituted service

(15) The court may order that a document be served by substituted service, using a method chosen by the court, if the party making the motion,

(a) provides detailed evidence showing,

(i) what steps have been taken to locate the person to be served, and

(ii) if the person has been located, what steps have been taken to serve the document on that person; and

(b) shows that the method of service could reasonably be expected to bring the document to the person’s attention.  O. Reg. 114/99, r. 6 (15); O. Reg. 322/13, s. 4 (2).

Same, notice

(15.1) An order under subrule (15) may be obtained on motion without notice, except where the person to be served is a government agency. O. Reg. 322/13, s. 4 (3).

Service not required

(16) The court may, on motion without notice, order that service is not required if,

(a) reasonable efforts to locate the person to be served have not been or would not be successful; and

(b) there is no method of substituted service that could reasonably be expected to bring the document to the person’s attention.  O. Reg. 114/99, r. 6 (16).

Service by advertisement

(17) If the court orders service by advertisement, Form 6A shall be used.  O. Reg. 114/99, r. 6 (17).

Approving irregular service

(18) When a document has been served by a method not allowed by these rules or by an order, the court may make an order approving the service if the document,

(a) came to the attention of the person to be served; or

(b) would have come to the person’s attention if the person had not been evading service.  O. Reg. 114/99, r. 6 (18).

Proof of service

(19) Service of a document may be proved by,

(a) an acceptance or reconnaissance of service, written by the person to be served or the person’s lawyer;

(b) an affidavit of service (Form 6B);

(c) the return postcard mentioned in clause (3) (c);

(d) the date stamp on a copy of the document served by deposit at a document exchange; or

(e) a record of service provided by an electronic document exchange that meets the requirements of this rule. O. Reg. 114/99, r. 6 (19); O. Reg. 140/15, s. 1 (7); O. Reg. 522/21, s. 3.

Document that was not seen on effective date

(20) The court may, on motion, lengthen a time, set aside the consequences of failing to take a step by a specified time, order an adjournment, or make any other order that is just, if, despite service of a document having been effected on a person in accordance with this rule, the person shows that the document,

(a) did not come to his or her notice; or

(b) came to his or her notice only after the effective date of service. O. Reg. 140/15, s. 1 (8).

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Did you know that if you have been separated for more than 90 days because of a breakdown in your relationship you need to inform the Canada Revenue Agency (CRA)? Actually, you need to inform CRA whenever there is a change to your marital status such as: 

• You get married.
• You enter into a common law relationship.
• Your spouse or common-law partner dies.
• You have been separated for over 90 days due to a breakdown in your relationship, not simply because you are physically unable to live with your partner because they are away for work or school for example.  

When you update your status with the CRA, you avoid missing out on benefits you may be entitled to or avoid receiving incorrect payments. 

If you need any help with family law matters, contact AP Lawyers, our family law firm in Scarborough, Pickering, Markham, and Toronto. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

CRA offers various options for updating them on your marital status. For more information, visit the CRA website on www.canada.ca/en/revenue-agency/services/child-family-benefits/update-your-marital-status-canada-revenue-agency.html 

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Angelina Jolie Brad Pitt and kids

A major question on everyone’s mind following Angelina Jolie filing for divorce from Brad Pitt is, what would happen with their six children?

Angelina has asked for joint legal custody but sole physical custody. What this means is she wants to make important decisions regarding the children jointly with Brad, but she wants the children’s main residence to be with her. Brad will have visitation rights (called access in Ontario).

In Ontario, such custody and access disputes are settled on the basis of the best interest of the children. The best interest of the child test is the ONLY relevant test in custody and access matters.

Given that Brad and Angelina have made themselves out as the models for success co-parenting, Angelina’s legal team have their work cut out for them, especially given reports that have surfaced showing that primary residence of the children with Angelina is unacceptable to Brad. Pitt has even been quoted as saying “there’s no chance that’s going to happen”. These sources say Pitt wants to co-parent the children with Jolie.

In a custody dispute in Ontario, this would weigh positively in Brad’s favor. The Divorce Act in Canada, deals with this maximum contact principle as follows: In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
(s.16(10) Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.))

Therefore, where a parent (Party A) tries to alienate the other parent (Party B) from a child’s life, the court may award custody to the other parent (Party B).

The story is only starting to unfold, and thousands of miles away from Ontario. We can only wish the children the best and hope that their best interest remains the central focus of any resolution of the custody and access issue.

If you need any help with family law matters, contact AP Family Lawyers Services in Scarborough, Pickering, Markham, and Toronto. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

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Reduce costs of divorce

Divorces can be pretty pricey and most people do not actually know what is involved and how high the costs could end up being. Of course, when people get married, the last thing they are thinking about is ever getting a divorce. However, life happens and sometimes it is better to be prepared than not. The very first thing couples can get that would help with the costs of divorce, is a prenuptial agreement or a cohabitation agreement outlining responsibilities in the event that the relationship takes a wrong turn. Divorces are not as simple as getting a piece of paper. The process of getting the divorce can be long, hard, and definitely costly, especially if the parties are not amicable.

When getting a divorce, you have to think about what the two of you have accumulated over the years and how that is going to be divided. You also have to think about the costs of a divorce including separation agreements, court fees, and legal fees. A lot of people think they know the laws regarding divorce and what they are entitled to, when in reality it ends up being quite the opposite. That is why it is so crucial for parties to seek legal advice when getting a divorce or separation. Here are a few steps to help you keep your divorce costs low:

• Know the laws – First, get yourself familiar with the laws. Understand the process of separation and divorce and what it is you want out of it. Try to understand what you are entitled to i.e. spousal support, child support, etc., and seek legal advice to help you understand your rights. There are several Family Law Information Centres across Ontario that provide a lot of information on separation, divorce, and other family law matters and the best news is that it is FREE!
• Be organized – Once the separation or divorce process starts, there are going to be quite a few documents requested by your lawyer to determine what you are entitled to and to prove that as well. Have them organized and ready for your lawyer to review. Be a step ahead of the game and start preparing a Financial Statement with the applicable documents.
• Other alternatives – Know that there are other ways to resolve a separation or divorce that does not require a feud in court. Mediation or Arbitration are options. Try being amicable with your partner, instead of having the lawyers battle back and forth. It only costs you more money each time a phone call is made or a letter is sent.
• Division of property – One thing I cannot stress enough is really pick and choose what matters the most to you. If you are fighting over a few simple household items, is that really saving you money? The cost for the back and forth between lawyers is most likely going to exceed the cost of the items you are fighting for.
• Other resources – Most law offices have legal assistants that are trained and able to do some of the work. Ask your lawyer if there is an assistant or clerk that can help on your file to help reduce the costs.

Overall, we know the cost of the initial marriage was already expensive enough, we do not want the divorce to be just as costly. Let us help you keep your separation and divorce costs low. Here at A. Princewill Law Firm, we do our best to get our clients exactly what they deserve. We know the process is hard emotionally and the last thing we want to add to our clients is financial stress. To help alleviate that, we evaluate your situation and offer either a flat fee cost or an hourly rate to help keep the costs as low as possible depending on your situation. We are here for our clients every step of the way. If you need legal advice regarding a divorce or any family matter, please contact our office.

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RULE 21:  REPORT OF CHILDREN’S LAWYER

REPORT OF CHILDREN’S LAWYER

21. When the Children’s Lawyer investigates and reports on custody of or access to a child under section 112 of the Courts of Justice Act,

(a) the Children’s Lawyer shall first serve notice on the parties and file it;

(b) the parties shall, from the time they are served with the notice, serve the Children’s Lawyer with every document in the case that involves the child’s custody, access, support, health or education, as if the Children’s Lawyer were a party in the case;

(c) the Children’s Lawyer has the same rights as a party to document disclosure (rule 19) and questioning witnesses (rule 20) about any matter involving the child’s custody, access, support, health or education;

(d) within 90 days after serving the notice under clause (a), the Children’s Lawyer shall serve a report on the parties and file it;

(e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it; and

(f) the trial shall not be held and the court shall not make a final order in the case until the 30 days referred to in clause (e) expire or the parties file a statement giving up their right to that time.  O. Reg. 114/99, r. 21.

If you need any help with family law matters, contact our AP Lawyers in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

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RULE 8.1:  MANDATORY INFORMATION PROGRAM

APPLICATION OF RULE

8.1 (1) This rule applies to cases started after August 31, 2011 that deal with any of the following:

1. A claim for custody of or access to a child under the Divorce Act (Canada) or Part III of the Children’s Law Reform Act.

2. A claim respecting net family property under Part I of the Family Law Act.

3. A claim respecting a matrimonial home under Part II of the Family Law Act.

4. A claim for support under the Divorce Act (Canada) or Part III of the Family Law Act.

5. A restraining order under the Family Law Act or the Children’s Law Reform Act.

6. A motion to change a final order or agreement under rule 15, except motions that deal only with changing child or spousal support.  O. Reg. 383/11, s. 2 (1).

EXCEPTION

(2) Subrules (4) to (7) do not apply to,

(a) a person or agency referred to in subsection 33 (3) of the Family Law Act;

(b) the Director of the Family Responsibility Office;

(c) parties in cases that are proceeding on consent;

(d) parties in cases in which the only claims made are for a divorce, costs or the incorporation of the terms of an agreement or prior court order;

(d.1) parties to an application in which the only claims made in the application and any answer relate to a family arbitration, family arbitration agreement or family arbitration award, unless the court orders otherwise; or

(e) parties who have already attended a mandatory information program. O. Reg. 89/04, s. 3; O. Reg. 383/11, s. 2 (2); O. Reg. 388/12, s. 4.

CONTENT OF PROGRAM

(3) The program referred to in this rule shall provide parties to cases referred to in subrule (1) with information about separation and the legal process, and may include information on topics such as,

(a) the options available for resolving differences, including alternatives to going to court;

(b) the impact the separation of parents has on children; and

(c) resources available to deal with problems arising from separation.  O. Reg. 89/04, s. 3.

ATTENDANCE COMPULSORY

(4) Each party to a case shall attend the program no later than 45 days after the case is started.  O. Reg. 89/04, s. 3.

APPOINTMENTS TO ATTEND

(5) The applicant shall arrange his or her own appointment to attend the program, obtain an appointment for the respondent from the person who conducts the program, and serve notice of the respondent’s appointment with the application.  O. Reg. 89/04, s. 3.

CERTIFICATE

(6) The person who conducts the program shall provide for each party who attends a certificate of attendance, which shall be filed as soon as possible, and in any event not later than 2 p.m. on the second day before the day of the case conference, if one is scheduled.  O. Reg. 89/04, s. 3.

NO OTHER STEPS

(7) A party shall not take any step in the case before his or her certificate of attendance is filed, except that a respondent may serve and file an answer and a party may make an appointment for a case conference.  O. Reg. 89/04, s. 3.

EXCEPTION

(8) The court may, on motion, order that any or all of subrules (4) to (7) do not apply to the party because of urgency or hardship or for some other reason in the interest of justice.  O. Reg. 89/04, s. 3.

(9) Revoked:  O. Reg. 561/07, s. 2.

If you need any help with family law matters, contact AP Family Law Firm in Scarborough, Pickering, Markham, and Toronto. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

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Summary judgment

When available

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.  O. Reg. 114/99, r. 16 (1).

Available in any case except divorce

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.  O. Reg. 114/99, r. 16 (2).

Divorce claim

(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6).  O. Reg. 114/99, r. 16 (3).

Evidence required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.  O. Reg. 114/99, r. 16 (4).

Evidence of responding party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.  O. Reg. 91/03, s. 5.

Evidence not from personal knowledge

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.  O. Reg. 114/99, r. 16 (5).

No genuine issue for trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.  O. Reg. 114/99, r. 16 (6).

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 69/15, s. 5 (1).

Oral evidence (mini-trial)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).

Only issue amount of entitlement

(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount.  O. Reg. 114/99, r. 16 (7).

Only issue question of law

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.  O. Reg. 114/99, r. 16 (8).

Order giving directions

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).  O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

(10), (11) Revoked: O. Reg. 69/15, s. 5 (4).

Motion for summary decision on legal issue

(12) The court may, on motion,

(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(i) the court has no jurisdiction over it,

(ii) a party has no legal capacity to carry on the case,

(iii) there is another case going on between the same parties about the same matter, or

(iv) the case is a waste of time, a nuisance or an abuse of the court process.  O. Reg. 114/99, r. 16 (12).

Evidence on motion for summary decision of legal issue

(13) On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission.  O. Reg. 114/99, r. 16 (13).

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