service of divorce petitionOnce you file for divorce, you have to serve your divorce petition on your ex-spouse. Service involved delivering the legal documents to them so that they have notice of the proceedings and can defend against it if they choose. Unless you notify the other side you cannot proceed with your divorce.

In Manitoba, Petitions for Divorce must be served personally on the other side. This means having someone hand deliver the court documents and then swear an affidavit setting out when and where they served the documents. Under Manitoba’s court rules, you cannot serve the documents yourself but have to get a third party to do it for you. You can use a professional process server or a friend.

However, in some cases, it is not possible or practical to serve your ex-spouse. You may not have seen them in years and they may have dropped off the radar completely. Or, they may be intentionally avoiding service. Being unable to serve the other side with your divorce papers may cause considerable delay, aggravation and additional costs, but there are ways around this problem.

If you are truly unable to serve the other side with your court documents, you can apply for an Order of Substitutional Service (also called alternative service) from the court. If granted, this order will permit service of your documents by a means other than personal service.

First you have to establish that personal service is impossible or impracticable. Then, secondly, you have to establish that a proposed alternative to personal service is likely to result in notice to the other side.

For example, if you are unable to locate your husband but know that he keeps in touch with his sister, the court may authorize notice being sent to him in care of his sister. Or, if your ex-wife has a Facebook page which seems active, the court may authorize notice through Facebook. Other methods of alternative service include publishing notices in a newspaper. Obtaining an order of substitutional service and then carrying out the steps authorized by the court (such as publishing notice in the paper) will add cost and delay to the process. The good news is that there are ways around this problem.


Robert Pellizzaro

Robert Pellizzaro

Robert Pellizzaro is a lawyer and partner in the firm of Mayer Dearman & Pellizzaro. He has extensive experience practicing divorce and family law.

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