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How do I serve papers in Canada?
July 21, 2014 1:42 PM   Subscribe

My friend has an uncomplicated divorce (no assets, no kids, no shared debt, filing taxes singly.) The ex lives in Canada and is a Canadian citizen, my friend who is filing for divorce is in California and a United States citizen. She has free legal help-- they got the papers filled out properly and explained the general process, but didn't explain serving papers. Paying to speak to a lawyer is out of the question. How do we serve papers internationally, to a known address? What if she refuses delivery or can't be found?
posted by blnkfrnk to Law & Government (12 answers total)
 
Try talking to your local Canadian consulate (San Francisco or Los Angeles).
posted by Etrigan at 1:52 PM on July 21


If the divorce is uncomplicated what makes your friend think her ex won't simply accept service? If your friend hasn't tried it already, she should ask her ex to accept service.
posted by MoonOrb at 1:53 PM on July 21


The ex might not accept service because it was a very bitter breakup. They have no contact (and we don't know anyone else in Canada who can be a go-between.)

I think the ex will sign for the papers and passively respond to any legal requests and that serving and completing this process won't be an issue, but we want to know what to do if that turns out not to be the case.
posted by blnkfrnk at 2:08 PM on July 21


You say this is "uncomplicated", but it's two women, right? And acrimonious? And international? That isn't uncomplicated, and it may be necessary to get lawyers involve. Yeah, I know it's expensive, but in the long run it will probably be money well spent.
posted by Chocolate Pickle at 2:15 PM on July 21 [2 favorites]


You can hire a process server, same as in the States. I have done that and it was more expensive than in the States, and it also didn't work out because we didn't have the defendant's correct current address, but that wasn't their fault.
posted by Safiya at 2:31 PM on July 21


There are several companies in Canada that will serve papers for individuals (i.e., non-lawyers) in the USA (I googled "process serving canada" to find them). Here is some information on one of them. Follow their instructions. Regardless of where she is, if she refuses delivery, or can't be found, your local court will render a decree without her (once you have satisfied them that you made a good-faith attempt to locate and serve her).
posted by ubiquity at 2:35 PM on July 21


"What if she refuses delivery or can't be found?" is, I'm sorry to tell you, absolutely a question of California-specific law that no one here can answer. I'd try contacting a process server in California and seeing what advice you can get.
posted by sevensnowflakes at 2:39 PM on July 21


IANAL, TINLA

I would advise seeing if whoever gave her the legal advice can give her advice about the proper method of service in California. The California courts have some information on their website about the different types of service but note that some types of cases require a particular type of service. Your friend wants to make sure that she does this legally by the book so she should look into getting legal advice which is something ask metafilter can't give you. There may be organizations that will give your friend limited free legal advice and given the complications of the situation that might be something to look into.
posted by SpaceWarp13 at 2:40 PM on July 21


I think by "uncomplicated" the OP means from a legal point of view -- no shared assets or debt, no children -- rather than a personal one.
posted by scody at 2:52 PM on July 21


And yeah, I think the answer to the question is basically to contact a process server in the city or province where the ex resides.
posted by scody at 2:53 PM on July 21


Chiming in again to urge that OP contact a process server in California, and not in Canada, for advice about how to properly serve someone in Canada. Yes, OP will likely need a Canadian process server eventually to physically effect the service, but a Canadian process server isn't going to know anything about whether the method of service he/she uses is valid under California law, which is the jurisdiction in which OP's friend needs to provide proof of proper service to the court adjudicating her divorce action.
posted by sevensnowflakes at 3:01 PM on July 21 [4 favorites]


Per California Code of Civil Procedure section 415.40, service to an out-of-state (including out-of-country) defendant can be made by first-class mail with a return receipt. Per section 414.10, the mail can be sent by anyone over 18 who is not a party (i.e. not your friend). Per section section 417.10, she will need a signed return receipt (or other evidence that the mail was actually delivered to the defendant) in order to file the proof of service.

That's the least expensive way, but it won't work if the ex doesn't sign for the letter. In that case, I believe she can simply hire a process server in Canada to serve the documents in person.

There is a treaty called the Hague Service Convention that provides for international service of process, but as I understand it, the mechanisms it defines create an alternative rather than a replacement for the existing legal means of service. Under the Hague Convention, she would have to have an attorney or other court officer forward a service request to the central authority in the defendant's province (usually an office within the provincial department of justice), who would then be responsible to have the papers served. That would add unnecessary complexity and delay though.

I would not concur with the advice to consult a California process server, as in my experience they tend to barely know the laws for service in California, much less in a foreign country.
posted by Sxyzzx at 7:03 PM on July 21 [1 favorite]


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