Serving Divorce Papers in Canada: What If You Can’t Find Your Spouse?

Introduction

Once you file for divorce, one of the most important steps is serving the divorce papers to your spouse. This ensures that they are formally notified of the legal proceedings. However, in some cases, a spouse may be difficult to locate or unwilling to accept the papers, creating challenges in moving forward with the divorce.

If you are unable to find your spouse, there are legal alternatives available, including substituted service and filing for default judgment if they fail to respond.

This guide will cover:

• How to properly serve divorce papers

• What to do if your spouse cannot be found

• How substituted service works

• What happens if your spouse ignores the divorce papers

1. The Process for Serving Divorce Papers

In Canada, the law requires that your spouse be formally notified of the divorce proceedings. This is done through service of process, meaning they must receive a copy of the divorce application and other relevant documents.

Ways to Serve Divorce Papers

• Personal Service – You or a professional process server hand-delivers the divorce papers directly to your spouse.

• Registered Mail or Courier – A copy of the divorce documents is sent to your spouse’s last known address, and they must sign for receipt.

• Through a Lawyer – If your spouse has legal representation, their lawyer can accept the divorce papers on their behalf.

Proof of Service

After serving the documents, you must complete an Affidavit of Service, which confirms:

• The date and method of service

• Who delivered the papers

• Your spouse’s response (if any)

This affidavit is then filed with the court as proof that the service has been completed.

Key Takeaways

• Divorce papers must be officially served to inform your spouse of the proceedings.

• The court requires proof of service, usually through an Affidavit of Service.

• Personal delivery, mail, and lawyers are common ways to serve documents.

2. What Happens If You Cannot Locate Your Spouse?

In some cases, one spouse may be difficult to find due to moving, changing contact information, or intentionally avoiding service. If you are unable to locate them, the court will not allow the divorce to proceed until you have made reasonable efforts to serve them.

Steps to Locate a Missing Spouse

1. Search Online and on Social Media – Many people leave digital traces that can help you determine their location.

2. Contact Mutual Friends or Family Members – Ask if they know your spouse’s whereabouts.

3. Check Public Records – Some government agencies allow you to request information about your spouse’s last known address.

4. Hire a Private Investigator – If all else fails, a licensed investigator may be able to locate your spouse using databases and tracking methods.

If Your Spouse Is Still Missing

If all reasonable efforts have been exhausted and your spouse cannot be found, you can apply for substituted service, which allows you to serve the divorce papers through alternative methods.

Key Takeaways

• You must make a reasonable effort to locate your spouse before requesting alternative service.

• Online searches, mutual contacts, and public records can help track down a missing spouse.

• If they remain missing, you can request substituted service.

3. The Legal Requirements for Substituted Service

If you are unable to serve your spouse using traditional methods, you can file a motion for substituted service with the court. This request asks the court to allow alternative ways to notify your spouse of the divorce.

What Is Substituted Service?

Substituted service allows you to serve divorce papers without physically handing them to your spouse. Common methods include:

• Publication in a Newspaper – The court may allow you to publish a notice of the divorce in a local or national newspaper.

• Mailing to Last Known Address – If your spouse has a known last address, the court may allow service by regular mail.

• Email or Social Media – In some cases, courts have permitted service through email, Facebook, or other online platforms.

Steps to Request Substituted Service

1. Gather Evidence of Your Efforts – You must show the court that you tried to find your spouse using all reasonable methods.

2. File a Motion for Substituted Service – This includes an affidavit explaining your attempts and your proposed method for serving the papers.

3. Wait for Court Approval – If the judge agrees, you will be allowed to proceed with the alternative method of service.

Key Takeaways

• Substituted service is an alternative when your spouse cannot be located.

• You must prove that you made reasonable attempts to find and serve them.

• Newspapers, email, and last-known addresses are common methods of substituted service.

4. What Happens If Your Spouse Ignores the Divorce Papers?

If your spouse does not respond to the divorce papers after being properly served, you can apply for a default judgment. This means the court may proceed with the divorce without your spouse’s participation.

Steps to Obtain a Default Judgment

1. Wait for the Response Period to Expire – Your spouse has a set period (usually 30 days) to respond after being served.

2. File a Request for Default Judgment – If they fail to respond, you can file a motion with the court requesting to finalize the divorce without their input.

3. Court Reviews Your Request – The judge will review your application, ensuring that all legal requirements were met.

4. Divorce Order Is Granted – If approved, the divorce will be finalized without your spouse’s involvement.

Key Takeaways

• If your spouse does not respond, you can proceed with a default judgment.

• The court will review your request to ensure proper service was completed.

• Once approved, your divorce will be finalized, even without your spouse’s participation.

Final Thoughts: Serving Divorce Papers and Moving Forward

Serving divorce papers is a critical step in the legal process, and failure to do so correctly can delay or even prevent your divorce from proceeding. If you cannot locate your spouse, substituted service and default judgment options can help you move forward.

Key Points to Remember:

• Divorce papers must be officially served, and proof of service must be filed with the court.

• If you cannot locate your spouse, you must try to find them before requesting substituted service.

• Substituted service must be approved by the court and can include newspaper publication, email, or mailing to a last-known address.

• If your spouse ignores the papers, you can file for a default judgment, allowing the court to finalize the divorce without their participation.

Next Steps:

• If you are unable to serve divorce papers, consult your provincial family court for guidance on substituted service.

• Learn about how to speed up your divorce process in our next guide:

Want a Faster Divorce? Here’s How to Speed Up the Process in Canada