How to arrange for substituted service

How to serve documents when the other party is avoiding service or not available

Note: Mouse over any of the terms in green type to see a definition.

How to arrange for substituted service

When is substituted service necessary?

Court rules often require a document to be personally served on the other party. If you cannot have the documents personally served because you cannot find the other party or because he or she is repeatedly and deliberately avoiding the process server, a master or judge may make an Order allowing you to serve the documents in another way. This is often called substituted (or substitutional) service because you can substitute the method of service ordered by the master or judge for the service required by the court rules.

If you are in this situation, you need to apply to court for a court Order for substituted service to allow you to proceed with your case. This type of application is sometimes called a "procedural application." The Order you get should allow you to get on with the main issue in your case, such as getting a custody or access Order or changing the amount of support.

To get an Order for substituted service, you must provide good reasons why you cannot personally serve the documents as required by the court rules. You must give your reasons in a sworn Affidavit or in person before a master/judge. To be successful, you must convince the master/judge that:

• you diligently (thoroughly) searched for but cannot 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 have diligently 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 cannot deliver the document, he or she will provide you with a detailed Affidavit explaining the efforts made, and stating if 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 is 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 39 of the Family Relations 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 government agencies. You must take these steps first, because the master/judge will not make an Order for substituted service if he or she does not believe you have tried hard enough to find the other party.

You will need to file your own Affidavit 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 have 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 do not 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 that 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 master/judge for delivering the documents so they will 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 mother, include that information in your Affidavit. Include her name and address, as the master/judge will need to include those details in the Order. If you have a mailbox number, address, fax number, or e-mail address for the person to be served, include that information, and ask if you may serve the person by mail, fax, or e-mail. 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 do not 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 format ordered by the master/judge (see JP Boyd's Family Law Resource website for a sample of such an ad) and pay for the costs of the advertisement.

You could also ask the master/judge to allow you to serve the other party by posting a copy of your Writ of Summons (Form 127) and Statement of Claim (Form 128) (Supreme Court) or Application to Obtain an Order (Provincial Court) in the court registry. This is the cheapest method of substituted service, but you must first make every effort to find the other party (and be prepared to prove that you have done so).

If the master/judge 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 will have to take the Order for substituted service and a copy of your Writ of Summons and Statement of Claim (Supreme Court) or Application to Obtain an Order (Provincial Court) to the court registrar. The registrar will date stamp the documents for you to put up on the board, and you will have to take them down again. Different courts may have different procedures for doing this. Ask at the court registry how to proceed.

Note: 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 master/judge says otherwise.

See Supreme Court Rule 12 and Provincial Court Rule 9 for more information about substituted service applications.

For more information about other ways to serve documents substitutionally, see JP Boyd's Family Law Resource website.

Step-by-step instructions for getting an Order for substituted service

In Provincial Court

1. Once you have tried everything you can to serve the documents on the other party, fill out a Notice of Motion. Use the same file number and court registry name where any previous Application to Obtain an Order was made, even if you have moved. Ask the family registry clerk at this court what date you may choose for the hearing date. You must put the court hearing date into the Notice of Motion.

Notice of Motion (this form contains instructions for completion) (PDF)

2. Complete an Affidavit.

Affidavit (Form 10) (this form contains instructions for completion) (PDF)

3. Have your completed Affidavit sworn or affirmed by taking it to a lawyer, notary public, or other commissioner of oaths (found in courthouse registries at Provincial Court).

Note: If you are going to a lawyer or a notary public, call ahead to make an appointment and to make sure that he or she can swear or affirm the document for you. Say the document is an Affidavit. Make sure you tell the person that you do not need any advice.

When you go to have the Affidavit sworn or affirmed, take photo identification with you. The person who will swear the Affidavit for you must be sure you are who you say you are. After identifying you, he or she will ask you if you have read the Affidavit, and if you swear or affirm that the contents are true to the best of your knowledge and belief. If you answer yes, then you sign the documents, and the person witnesses your signature.

Note: See our guide called How to serve documents for more information about how to serve a document and complete the Affidavit of Service.

4. Once the Affidavit has been sworn or affirmed, make three photocopies of all your documents, and go to the court registry to file your documents. You must file the application at the same court where any Application to Obtain an Order was filed or previous Order was made. File original Affidavit(s) and your Notice of Motion. File the three photocopies of each document at the same time. The court clerk will give you back the extra copies stamped with the court seal. These are your "filed copies."
5. On your court date, ask the judge for an Order based on your filed Affidavit evidence. If judge refuses to use Affidavit evidence (in Provincial Court, it is the judge's choice), ask if you may take the witness stand to give your evidence, or ask for a hearing date at which you may come back to give your evidence verbally. Follow the judge's instructions.
6. Attend the hearing if necessary. If there is no lawyer for either party, the Provincial Court registry will prepare the Order for you and mail it to you.

In Supreme Court

1. Once you have tried everything you can to serve the documents on the other party, you can apply for an Order for substituted service in Supreme Court without a court hearing. This is called applying for a "Desk Order." This Desk Order is just as effective as an Order made in court. To apply for a Desk Order, you need to fill out several forms. In these forms, use the same file number and court registry name where any Writ of Summons was filed or previous Order was made, even if you have moved.

To complete the forms, choose from the following options:

• Print the form (in either Word or PDF) and use a typewriter to fill it out.
• Print the form out and write on it (print legibly).
• Download the Word file and fill it out using a computer word processor.

Affidavit (PDF) (Word)
Instructions for completing the Affidavit (PDF)

Draft Desk Order (PDF) (Word)
Instructions for completing the draft Desk Order (PDF)

Requisition (PDF) (Word)
Instructions for completing the Requisition (PDF)

Note: Do not change the format of the forms (that is, do not change the order of the items or delete items unless the instructions tell you to).

You also need to prepare a backing sheet for the draft Desk Order. See our guide called How to fill out backing sheets for Supreme Court forms to find a blank backing sheet and instructions for filling it out.

If you need help with these forms, see Filling out court forms — Who can help.

2. Have your completed Affidavit sworn or affirmed by taking it to a lawyer, notary public, or other commissioner of oaths.

Note: If you are going to a lawyer or a notary public, call ahead to make an appointment and to make sure that he or she can swear or affirm the document for you. Say the document is an Affidavit. Make sure you tell the person that you do not need any advice.

When you go to have the Affidavit sworn or affirmed, take photo identification with you. The person who will swear the Affidavit for you must be sure you are who you say you are. After identifying you, he or she will ask you if you have read the Affidavit, and if you swear or affirm that the contents are true to the best of your knowledge and belief. If you answer yes, then you sign the documents, and the person witnesses your signature.

Note: If you have the Affidavit sworn at the court registry, it will cost you $31.

3. Once the Affidavit has been sworn or affirmed, make one photocopy of all your documents, and go to the court registry to file your documents. You must file the application at the same court where any Writ of Summons was filed or previous Order was made. File the original Affidavit(s), draft Desk Order, and Requisition. The registry clerk will date stamp your Requisition and Affidavit, keep the originals of all documents, and return the photocopies to you. You will have to pay a filing fee. These are your "filed copies."
4. If your application for a Desk Order is rejected, the court registry staff will tell you why and how you can fix it. You may need to provide additional documents or change the documents you have already prepared. (Occasionally, they may tell you that you to have to go to court to apply. If this happens, you might need to prepare and file another Requisition at the court registry. Ask the court registry staff what you need to do in this case.)
5. You will receive a photocopy of the original Order once it is signed. Be sure to ask the clerk how long it usually takes to have the written Order signed and where you should go to pick up your copy.

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