Court File and Parties

Date: December 12, 2020

Court File Number: DFO-20-15629

Toronto

Ontario Court of Justice

14B Endorsement

Justice: Maria N. Sirivar

Parties

Applicant: Maria Cristina Espejo

• Present
• Counsel: In Chambers, no one appearing

Respondent: Estelito Elacion Dizon Jr.

• Present
• Counsel: Not Served

Relevant Facts

[1] The Applicant mother filed a 14b motion, without notice, seeking an order for substitute service. The Respondent father resides in Saudi Arabia, where the parties lived together from 2008 to 2012. She explains that she does not know anyone in Saudi Arabia who could serve the Respondent father personally, with the Application and related documents, and provide her with a signed affidavit of service. She further deposes:

"I am legally aided, and as such do not have the means to hire a process server to serve the Respondent personally in Saudi Arabia with these court documents".

[2] The Applicant mother describes having a good relationship with the Respondent father and that they communicate well. She asserts that the Respondent father is aware of and consents to the order granting her sole custody that she seeks in the Application.

[3] According to the Applicant mother, the Respondent father provided an email address for service. She asks that she be permitted to serve all documents upon the Respondent father using the email address identified in her affidavit. Attached to the affidavit is an email that she claims demonstrates that the Respondent father consents to the orders she is seeking.

Discussion

[4] The Family Law Rules (the "Rules") set out the requirements and options for proper services of documents. Where a party is unable to comply with the Rules, he or she can seek relief pursuant to Rule 6(15). In this case, the Applicant mother takes the position that she is unable to comply with Rule 8(5), which requires that an Application be served by special service, because she is legally aided and cannot afford to hire a process server.

[5] The Applicant mother has not, however, satisfied the requirements of Rule 6. Subrule 6(15)(a)(ii) requires that she provide "detailed evidence showing" the steps she has taken to serve the documents on the Respondent father. Additionally, 6(15)(b) requires that the Applicant mother show that service by email, using the email address identified, can reasonably be expected to bring the Application and related documents to the Respondent father's attention.

[6] Legally aided litigants stand before the Court in the same position as all other litigants. As such, they are not relieved of the obligations imposed by Rules for the proper service of documents. Even if being legally aided was sufficient on its own, the Applicant mother's position is problematic for three reasons. First, the Applicant mother failed to provide evidence that Legal Aid Ontario will not fund disbursements associated with serving documents.

[7] Second, she lived in Saudi Arabia from 2008 to 2012 (at least). It is unclear from the record before the Court why the Applicant mother was unable to find someone to serve the documents on the Respondent father, particularly given that she and the Respondent father communicate and have a good relationship.

[8] Third, a process server and an individual serving the Respondent father in Saudi Arabia are not the only options available under Rule 6. The Applicant mother can, for instance, serve the Respondent father by mail with a return card pursuant to subrule 6(3)(c).

[9] Substitute service is not meant to afford parties options they find more convenient. I find that the Applicant mother did not take steps to serve the Respondent father with the Application and related documents. Had she taken steps, she could have sought to validate irregular service with proof that the email address she used belongs to the Respondent father or filed a signed consent from the Respondent father.

[10] Further, the Applicant mother could have emailed the Respondent father a copy of the Application and related documents with a request that he admit service pursuant to Rule 6(19)(a).

[11] The Applicant mother has also failed to demonstrate that the use of this email address would bring the Application to the Respondent father's attention. There is no evidence that the proposed email address belongs to him.

[12] Parties routinely file 14b (procedural and uncomplicated) motions seeking orders for substitute service or to dispense with service. The Court appreciates that parties face challenges, including having limited financial resources, when attempting to serve documents and when attempting to navigate the court process, more generally.

[13] While it is important to facilitate efficiency and not require parties to overcome unnecessary obstacles, fairness demands that Applicants avail themselves of the options for service in the Rules before seeking relief. The requests for relief cannot be taken lightly as they may result in a party not being given a proper opportunity to participate in the proceeding.

[14] Based on the foregoing, the Applicant mother's motion is dismissed.

Justice Maria N. Sirivar