What to do when someone is avoiding service in Ontario

Personal service at the door

Personal service on an individual means leaving a copy of the document with that person (Rules of Civil Procedure, Rule 16.02(1)(a); Small Claims Court Rules, Rule 8.02(a); Family Law Rules, Rule 6(3)(a)(i)). The rules do not spell out what happens when someone refuses to take the papers or denies who they are; courts decide those situations on their facts.

What the rules do require is a sworn account of what happened. The civil Affidavit of Service (Form 16B) asks the server to state how they identified the person served. A careful process server notes how they knew it was the right person, what was said and what they did with the documents.

Alternatives to personal service

Before going to court, check whether an alternative method fits:

• At the home, after a failed attempt there: a copy in a sealed envelope left with an apparent adult member of the household, plus a copy mailed the same or next day (Rule 16.03(5); Small Claims Rule 8.03(2), which also allows courier; family Rule 6(3)(d)).
• Small Claims claims only: registered mail or courier to the individual’s home, if the individual or an apparent household member signs for it (Rule 8.03(7)).
• Through the person’s lawyer, if the lawyer accepts service in writing (Rule 16.03(2); Small Claims Rule 8.03(5), which also covers paralegals; family Rule 6(3)(b)).
• Civil only: mail with an acknowledgment of receipt card (Form 16A), effective only when the signed card comes back (Rule 16.03(4)).

Substituted service and orders dispensing with service

• Civil: if it is impractical for any reason to serve promptly, the court may order substituted service or, where necessary in the interest of justice, dispense with service (Rule 16.04(1)). The order says when substituted service is effective (Rule 16.04(2)); a document is deemed served on the date of an order dispensing with service (Rule 16.04(3)).
• Small Claims: if prompt service of a claim personally or by an alternative is shown to be impractical, the court may allow substituted service (Rule 8.04). There is no specific rule for dispensing with service of a claim; Rule 2.02 lets the court dispense with compliance with any rule if necessary in the interest of justice.
• Family: the court may order substituted service by a method it chooses (Rule 6(15)); the motion may be made without notice unless the person to be served is a government agency (Rule 6(15.1)). It may also, on motion without notice, order that service is not required if reasonable efforts to locate the person have not been or would not be successful and no method of substituted service could reasonably be expected to reach them (Rule 6(16)).

What the court needs to see

These orders are made on a motion supported by affidavit evidence (civil Rule 39.01(1); Small Claims Rule 15.01(1), Form 15A). The Family Law Rules are the most specific: the motion must give detailed evidence of the steps taken to locate the person and to serve them, and show that the proposed method could reasonably be expected to bring the document to their attention (Rule 6(15)). A motion can proceed without notice where notice is impracticable or unnecessary (civil Rule 37.07(2); Small Claims Rule 15.03(1)).

That makes the attempt record the core of the motion: the date, time and address of each attempt, who answered, what was seen (a car in the driveway, lights on, mail piling up) and anything said. Our process servers record every attempt with the time, GPS location, photos and notes, which can go straight into the supporting affidavit.

When papers were left another way

If a document was served by a method the rules or an order do not allow, the court can validate the service (civil Rule 16.08) or approve it (family Rule 6(18)) if the document came to the person’s attention, or would have but for their own attempts to evade service. Evidence of evasion is again what matters.

The deadlines keep running

• Civil: a statement of claim must be served within six months after it is issued (Rule 14.08(1)). The court can extend time, on a motion made before or after the time runs out (Rules 3.02(1) and (2)).
• Small Claims: a claim must be served within six months after it is issued; the court can extend the time before or after the six months (Rule 8.01(2)).
• Family: an application must be served immediately (Rule 8(5)). If it isn’t served by the court date, the clerk sets a new court date at the applicant’s request (Rule 8(11)).