Affidavit of Service in Ontario: Form 8A vs Form 16B vs Form 6B

Which form for which court

• Form 16B: civil actions and applications in the Superior Court of Justice under the Rules of Civil Procedure, such as a statement of claim (Rule 16.09(1)).
• Form 8A: Small Claims Court, under the Small Claims Court Rules (Rule 8.09.1(2)). Small Claims Court is part of the Superior Court of Justice, but it has its own rules and form.
• Form 6B: family cases under the Family Law Rules, including divorce, in the Superior Court of Justice, its Family Court and the Ontario Court of Justice (Rules 1(2) and 6(19)(b)).

Who makes the affidavit

The affidavit is made by the person who served the document (civil Rule 16.09(1); Small Claims Rule 8.09.1(2)). Form 6B is likewise written in the first person by the server, who states their relationship to any party and that they are at least 18. In family cases the person who serves an application cannot be the party (Family Law Rules, Rule 6(4.1)), so an affidavit sworn by the party for that kind of service is a red flag.

What it states

• Who was served, the documents served, and the date and place of service (all three forms; 16B and 6B also ask for the time).
• The method: personal service, an alternative to personal service, mail, courier, or substituted service under a court order.
• For personal service on an individual, Form 16B asks how the server identified the person.
• For service on a corporation, the name and position of the person who received it.
• For service at a home with an adult household member, Form 16B asks how the server knew the person was an adult member of the household and the date of the earlier failed attempt at personal service, and the mailing date.
• Form 6B also asks for the distance travelled and the server’s fee.

Swearing or affirming it

In civil proceedings an affidavit must be signed by the deponent and sworn or affirmed in accordance with the Commissioners for Taking Affidavits Act (Rule 4.06(1)(e)). Forms 16B and 8A provide for swearing in person or by video conference under O. Reg. 431/20, and Form 6B is to be signed in front of a lawyer, justice of the peace, notary public or commissioner for taking affidavits.

Common mistakes

• Using the wrong court’s form, for example Form 16B in a Small Claims case or a family case.
• Leaving out the earlier attempt or the mailing date when the documents were left with an adult at the home; that service is effective only on the fifth day after mailing (civil Rule 16.03(5), Small Claims Rule 8.03(4), family Rule 6(11.2)).
• Not listing every document served.
• Having the wrong person swear it: the affidavit should come from the person who actually served.

DirectFile provides a sworn affidavit of service for each person served, on the form for your court.