The Suprme Court Family Rules require that a person being sued be notified about the lawsuit and be given copies of the Notice of Family Claim that the Claimant has filed. This is called personal service.

Personal service is normally accomplished by physically handing a copy of the Notice of Family Claim to the Repondent; really, the documents only need to touch the Repondent's body. This is not always possible. If you do not know where the person you want to sue lives, or if that person is avoiding being served, you may have to apply to court for an order that you have permission to personally serve the Repondent in a way other than the way set out in the rules. This is called substitutional service.

Applying for an Order for Substitutional Service

You must get the court's permission before the court will accept any other means of service than that set out in Rule 6-3.

Once you have filed your Notice of Family Claim you must apply for an order that you be allowed to serve the Repondent substitutionally. You will have to prepare a Notice of Application describing the order that you want the court to make and your Affidavit in support of your application.

Your Affidavit should set out the reasons why personal service is impossible. If it's because you don't know where the Repondent is, you should say so. You should also say that you have no means of contacting the Repondent, for example, through family or friends. If you can't serve the Repondent because he or she is avoiding service, you should describe how you've tried to serve the Repondent and how often you've tried.

Because the Repondent hasn't been served you can make your application right away, without having the follow the usual rules which give the Repondent time to reply to your application. You can file your application and have your application heard the same day. Apart from this, the remainder of your application will be just like the normal application process.

Types of Substitutional Service

Posting in the Registry

If you have no idea at all where the Repondent might be, you can ask the judge to allow you to serve the Repondent by posting a copy of your Notice of Family Claim in the court registry for a certain period of time, usually no less than 30 days. This is the cheapest means of alternative service, and you really have to show that you've got no idea where the Repondent is, no relatives or friends to contact him or her through, and no idea where the Repondent works.

If the court grants this order, the court will specify how long the Notice of Family Claim must remain posted. Your job will be to take the judge's order, a copy of your Notice of Family Claim to the court registrar. The registrar will arrange for the posting, and take note of when it was put up.

Notices in the Classified Ads

If you have a general idea of where the Repondent might be (in Vernon, in the Peace District, in the Lower Mainland, for example) you can ask the court for an order that you serve the Repondent by posting an ad in the Legal Notices section of the area's local paper. The judge will usually specify the newspaper and for the number of issues the ad must be run in.

An example of this means of substitional service appears at right. In this ad, the Plaintiff (Claimant) J.H.H. is suing the Defendant (Respondent) I.L. for orders involving the care and control of a child, child support, and probably other relief. (Note that in the course of making the order for substitional service in this example, the judge hearing the application also made other orders relating to child support, and custody and guardianship of the child. This is a bit unusual. Normally the courts will not make those sorts of orders without notice to the other party, even if that party's whereabouts are unknown.) You can see how this ad:

1. advises the Repondent of the fact of the lawsuit, and provides important information about the style of cause, the court registry and the court file number;
2. states the terms of the order for substitutional service (posting in one issue of the weekend newspaper);
3. tells him or her how to get a copy of the Claimant's Notice of Family Claim; and,
4. gives the name and contact information for the lawyer representing the Claimant.

You should use similar wording if you obtain an order for this type of substitutional service, as the newspaper won't help you write your ad.

Be wary of pursuing this means of substitutional service: the costs can be quite high, as newspapers sometimes charge special rates for legal notices. The example on the right, which came from the Saturday 22 May 2004 issue of the Vancouver Sun probably cost between $400 and $550.

Service through Friends, Relatives and Employers

You may know another way by which the lawsuit can be brought to the Repondent's attention with a fair degree of certainty. The court may allow service to occur through a third-party, providing that there is reason to believe that the Repondent has a fair amount of contact with the third-party and that the third-party can be relied on to bring the lawsuit to the Repondent's attention. Typical examples are:

1. through the Repondent's work (co-workers or employers, who will probably be in contact with the Repondent on a reliable basis);
2. through family (a relative that you know the Repondent keeps in touch with);
3. through friends (friends who see the Repondent on a pretty regular basis); and,
4. through the Repondent's residence (a landlord or other people sharing the Repondent's apartment).

If you are certain that leaving your materials with one of these people will ensure that your lawsuit is brought to the Repondent's attention, the judge may give you an order to that effect. The order will usually say something to the effect of:

"service upon the Repondent may be effected by delivering a copy of the Notice of Family Claim with any adult resident at Apartment 123 at 456 Main Street in Anytown, British Columbia"

or

"service upon the Repondent may be effected by delivering a copy of the Notice of Family Claim to his employer, John Doe, of John Doe's Autobody, whose place of business is at Unit 123 at 456 Main Street in Anytown, British Columbia"

This means of service is usually reserved for Repondents who are or appear to be avoiding service.

Other Means of Service

The court really does have a wide latitude when it comes to making orders for subsitute service. Among other things, the court can order that the Repondent be served by:

1. posting a copy of the documents to the door of his or her home or office;
2. posting a copy of the documents in the local post office; or,
3. mailing it to the Repondent by registered mail.

The particular method the court considers appropriate will always depend on the circumstances and what is reasonable in those circumstances.

The Effect of Substituted Service

The goal of serving someone substitutionally is to try and alert that person to the fact of the lawsuit and tell him or her how to get more information about the lawsuit. The effect of an order for substitutional service is that a person will be deemed to have been served once all the terms of the order for substituted service are met. Whether the Repondent is actually alerted to the lawsuit is another story; the point here is that the court will consider the Repondent to have been properly served. This will allow you to go on with your lawsuit in the normal course once you've met the terms, whether the Repondent has found out about your claim or not.

The most important thing to know about substitutional service, is that time before you can do anything else in your lawsuit — such as applying for a default judgment, or making an application for temporary relief — doesn't start ticking until after the terms of the order of substituted service have been fulfilled. In other words, it isn't until the terms of the order are done that you can start counting the time until your next application to court.

For example, say the order allows you to serve someone by posting a copy of your pleadings in the court registry for 45 days. It isn't until the forty-sixth day that you can start counting time. Since the Repondent has 30 days to file a Response to Family Claim, you will have to wait 76 days (46 plus 30) from the date you got the order and the order was posted before you can ask for a default judgment or make any other application to the court.