Serving Court Documents at Domestic Violence Shelters

Should Rule 6 and Rule 8 of the Family Law Rules be amended to permit service of documents via shelter staff when the party being served resides in a domestic violence shelter?

Forest City Filing & Process Serving has served countless litigants with documents over the years where other process servers could not. When opposing parties are difficult to locate or trying to evade service, we utilize a wide range of tactics to locate them and effect service. Our strategies are growing and evolving and include skip-tracing, online investigations, restricted government record searches, corporate and business searches, and family, civil, and criminal public record searches. When a party is clearly evading service and when instructed to do so by counsel, we will conduct an old-fashioned stake-out for as long as necessary to serve your documents.

One of the most challenging scenarios involves serving family court documents on a Respondent (or Applicant) who is residing in a shelter for women who have reported domestic or intimate partner violence. Many of these women’s shelters exist within our primary service region, including Anova, Anova Clarke Road Shelter, Anova Second Stage Shelter, Anova Wellington Road Shelter, Zhaawanong Women’s Shelter, Rotholme Women’s and Family Shelter, Unity Project Emergency Shelter, Strathroy Emergency Shelter, Strathroy Transitional Housing, St. Thomas-Elgin Second Stage Transitional Housing, Huron Women’s Shelter and Second Stage Housing, Emily Murphy Centre, Onyota’aka Family Healing Lodge, Southwest Healing Lodge, and Ingamo Family Homes in Woodstock.

According to Statistics Canada, in 2017/2018, there were 552 residential facilities for victims of abuse in Canada. These facilities saw an average of 68,000 admissions per year, 60.3% were women and their accompanying children made up another 39.6% of admissions. Specifically, on April 18, 2018 there were a total of 3,565 women and 3,137 accompanying children in residential facilities for reasons of abuse across the country.

The majority of women who access these services are involved in our justice system. In December 2015, the Canadian research Institute for Law and The Family published a report entitled, “Access to Legal Services in Women’s Shelters”. This study revealed that the majority of participants (66.7%) had two or more legal issues. The vast majority of reported legal issues were family law related, and the most common issues were child support, separation, protection orders, and division of property. Also relevant were the findings that 75% reported unresolved legal issues when exiting the shelter, 33.3% stated that their experience with the justice system was more difficult than expected, and 25% said that it was much more difficult than expected. The reported legal issues, and findings regarding justice experiences, lead to the conclusion that women in domestic violence shelters are frequently involved in family court litigation, and therefore frequently need to be served with court documents.

The Family Law Rules do not specifically contemplate the service of court documents upon women in domestic violence shelters, and thus the law requires that they be personally served the same as any other litigant. Domestic violence shelters are extremely secure by necessity and design, and access to their premises is tightly controlled. Nearly every women’s shelter in Ontario also has a policy prohibiting men from their property. The result is two conflicting realities which may exacerbate feelings of victimization for women (imagine a process server on a stake-out at the shelter), while also increasing costs for the moving party. We have noticed that there are two common scenarios where this occurs: serving family court applications, and serving ex-parte motions/orders in advance of the return date.

The first scenario involves the service of a Family Court Application. Rule 8 (5) of the Family Law Rules provides that “The Application shall be served immediately on every other party, and special service shall be used unless the party is listed in subrule (6).”

Special service requires that the party be served in accordance with Rule 6 (3) of the Family Law Rules and typically involves leaving a copy with the person personally, or leaving a copy at the person’s place of residence with an adult residing at the same address and then mailing a copy on the same or next business day.

The only exceptions to personal service of Applications are those listed under clause 8 (6) (c) (officials, agencies, etc.), or where the court orders otherwise (substituted service). There is no statutory exception for personally serving Applications on women in domestic violence shelters, and the law does not permit the documents to be left with shelter staff even where the staff and/or the resident request this.

Rule 8 (6) provides the following exceptions to special service of the Application on officials and agencies:

(a) a foster parent, at the foster parent’s residence;

(b) a representative of a band or First Nations, Inuit or Metis community, by serving the chief or other person who appears to be in charge of its management;

(c) on any of the following persons, at their place of business:

1. A Director appointed under section 53 of the Child, Youth and Family Services Act, 2017.
2. A local director appointed under section 38 of the Child, Youth and Family Services Act, 2017.
3. An administrator in charge of a secure treatment program under Part VII of the Child, Youth and Family Services Act, 2017.
4. A children’s aid society.
5. The Minister of Community and Social Services.
6. An agency referred to in subsection 33 (3) of the Family Law Act or subsection 20.1 (1) of the Divorce Act (Canada).
7. The Director of the Family Responsibility Office.
8. The Children’s Lawyer.
9. The Public Guardian and Trustee.
10. The Registrar General.

The addition of an exception under Rule 8 (6), or within Rule 6 generally, permitting special service by leaving a copy with an identified staff member of the domestic violence shelter in which the party resides, where the staff member has indicated their willingness to accept service on behalf of the party, could limit the potential for increased feelings of victimization, and also save costs and time for both litigants. Shelter staff would, of course, not be required to accept the document, but could do so on behalf of the resident. This would limit the resident’s exposure to potentially upsetting or embarrassing interaction outside of the safety of the women’s shelter.

The second common, and frequently connected, scenario that Forest City Filing & Process Serving has encountered is personally serving documents related to the return date of a motion without notice (ex-parte motion) under Rule 14 (12). This typically occurs in cases where the Applicant has filed an Application in addition to a motion without notice, does not immediately know where the Respondent and child(ren) are, and requires immediate assistance from the court (ex. a police enforcement order). Similarly, we have been hired in cases that were ongoing for some time when a party suddenly absconds with the child(ren) to an unknown location, withholds access, and an ex-parte motion is filed.

In these cases, Rule 14 (14) states that “An order made on motion without notice shall require the matter to come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the court”. These orders generally require that the opposing party be served with both the motion materials and the order itself.

Often, we are hired to serve these documents, and often we are dispatched to a women’s shelter to do so. A statutory exception allowing these documents to be served via shelter staff, should they consent to accept service on behalf of the resident, might increase the effective administration of justice for both parties.

Over the years, Forest City Filing and Process Serving has personally served numerous court documents on women residing in domestic violence shelters. It is sometimes both practically and emotionally difficult, but we get the job done every time. Often the shelter staff will ask if they could accept the documents and give them to the resident, however because of the current legislation we are unable to do so. Instead, on many occasions, we have had to wait off-site and serve the party in a public setting, but whatever the circumstances are, we will do what is required to get the job done.

If you have a party that you suspect may be difficult to serve, call us at 519-663-0509 or contact us online today. Our knowledge of the Rules, experience, and determination are your guarantee of satisfaction.