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A New York Judge issued a groundbreaking ruling allowing an Application for Divorce to be served through a Facebook message. The Court held that, provided Divorce papers were sent every week for three weeks through Facebook Messenger, service would be accepted as valid.
Hi. I’m Bo Luan – an associate lawyer at Feldstein Family Law Group. In today’s video, I’ll be speaking with you about effective service and whether you should soon expect to be able to serve a spouse or be served through Facebook messenger or other less traditional means.
Before I discuss service of documents in Ontario, let’s look briefly at the recent New York case. In that matter, the parties had essentially separated immediately after marrying. The parties never actually lived together as the marriage broke down immediately after the civil ceremony. When the wife sought to serve the husband with divorce papers in 2015, the husband continuously evaded service by refusing to disclose his whereabouts. The last address the wife had for her husband was an apartment he had moved out of in 2011. When the wife would speak with the husband on the phone, he told her he had no fixed address or place of employment. There wasn’t even a billing address linked to his cell phone and the DMV had no record of him. The wife went so far as to hire a private investigator, who also found no results. In light of this situation, the Judge allowed service through a Facebook message – with the caveat that the wife’s lawyer had to log into the wife’s account and send the messages.
So, would the Ontario courts permit service through Facebook Messenger?
Currently, where a party to a family law proceeding is evading service, the Court may make an Order for substituted service if the Applicant can demonstrate that he or she has no other way of serving the other party. The Family Law Rules generally require that an originating process, such as an Application or Motion to Change, be served personally by special service, meaning by a process server or another adult besides the Applicant. However, a Court may make an order for substituted service where the Applicant brings a motion and provides satisfactory evidence of: 1) the steps they’ve taken to locate the person to be served; and 2) if the person has been located, what efforts they’ve made to serve the document on them. Lastly, the Applicant must show that their proposed method of service (for the purposes of this video, Facebook) could reasonably be expected to bring the document to the person’s attention.
Currently, the Courts will grant an Order for substituted service by email correspondence if you can demonstrate that the other party regularly checks their email and will inevitably see the document. The Ontario Court has also allowed service through Your 6, a document exchange program used by lawyers to share financial disclosure. In a 2015 Ontario Superior Court of Justice case, Justice Wilcox allowed a document to be served by sending it through both email and Facebook Messenger at the same time.
Interestingly, Facebook Messenger has the advantage of automatically giving a notification when the recipient receives the message. Email does not do this unless the recipient chooses to return a receipt – which they might not do if they are evading service! So in theory, service by Facebook Messenger might be better than service by email.
Whether the Ontario courts will follow the New York court remains to be seen. However, the courts are beginning to recognize the advantages of evolving communications technology. This may ultimately streamline the court process, saving family law litigants time and legal fees.
For more information on service and commencing an Application for Divorce, please visit our website, or call us at (905) 581-7222 to schedule a consultation. From the Feldstein Family Law Group, I’m Bo Luan. Thanks for watching.