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How do I serve my spouse in a Calgary divorce?

From my time working as a divorce lawyer in Calgary, one of the things that I have noticed is that most clients have no idea how they are to serve their spouse with the divorce paperwork in Calgary. Many of them believe that they can do it themselves, unfortunately, this is not the case.

Rule 12.55(2) of the Alberta Rules of Court provides that, when starting a divorce action, the only person that is prohibited from serving the Defendant is the Plaintiff. In other words, one spouse is not allowed to serve the other spouse.

In most cases, service must be effected using personal service. This means that someone must attend before the Defendant and hand the documents to the Defendant. They do not have to ensure that the Defendant takes them so, for example, if the Defendant attempts to close the door to the residence, placing them within the residence will suffice. The person that serves the Defendant must then swear an Affidavit of Service confirming when and where they served the Defendant and must exhibit a photograph of the person that they served. This is to allow the Court to determine that the proper person was served.

Ordinarily, it is not acceptable to serve the Defendant via mail or email, even if the Defendant lives outside of Canada.

This means that the whereabouts of the Defendant must be known.

In some instances, it may be possible to obtain an Order from the Court allowing for "substitutional service." This may permit, for example, service via email, service via registered mail, or service to another person (i.e., a relative of the spouse). Usually, the Court will only allow such an Application if the Plaintiff has made an attempt to serve the Defendant personally, and has been unable to do so, and if the Court is satisfied that, if such an Order is granted, the alternative method of service is likely to bring the document to the attention of the Defendant.

Once the Statement of Claim for Divorce has been served, different rules apply to the service of documents that are subsequently filed with the Court.

If you have any questions regarding the above, or if you would like to discuss with me any issues relating to division of property, spousal support, child support, divorce, separation, custody and access, or guardianship or parenting, please either email me using this link, or contact me on 403-538-2105.

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