What To Do After Getting Served
We’ve all seen it happen on tv. Someone is going about their day when they’re haphazardly bumped into by what looks like a bike courier in a major hurry. It seems totally random, but then… surprise! The courier asks if they’re so-and-so and hands them an envelope, accompanied by the line we know so well: You’ve been served! Turns out it wasn’t random at all. Then the process server, the one delivering the envelope, rushes off again and out of sight. The person who was served is left standing there looking baffled and confused. It’s all super awkward.
Most of us rarely expect to be served ourselves, so when it does happen, it understandably feels embarrassing - even though it rarely plays out like you see on tv. When you know it’s coming, you might even try to avoid it at all costs. You start evading the process server by refusing to answer your door or pretending you’re not home, and watching your back everywhere you go. But getting served isn’t such a terrible thing. And FYI, process servers, in Canada anyways, don’t usually say “You’ve been served!”
Getting served is an important part of due process. It’s how the judicial system ensures that information is passed on to all the people who need to know. Getting served is for your benefit because it gives you time to prepare and respond. Imagine if a court action could proceed against you without you knowing about it?
Should you evade the process server?
Definitely not! Evading service could be considered an obstruction of justice, and in some cases, it could even lead to a warrant for your arrest. Evading the process server won’t make your legal issues go away. They’ll find a different way to serve you and proceed with the case. Avoiding service will just prolong the situation - and piss people off (probably not a good idea!). The best thing to do is to accept your documents, whatever they are, and deal with the issue. And also, don’t shoot the messenger. The process server is just doing their job.
What to do When You've Been Served
Your next course of action depends on what you’ve been served with. You may have been served a Notice of Claim for an unpaid debt, or maybe it’s an Application about a family matter. Will you need a lawyer? Not always, but if you need advice, we always recommend speaking to a lawyer.
Now, let’s break down the most common reasons you may have been served, and what you might need to do next.
Civil Court Claims
Civil cases are any lawsuit that involves a dispute that is not divorce/family, criminal, or traffic . They’re usually about money (money owed or money lost), and they’re always settled with money. Some common examples of civil lawsuits are:
- contract disagreements
- personal injury claims
- claims for damages, either to your property or your reputation
The process for resolving civil disputes is generally the same across Canada, with some small differences.
If You’ve Been Served with a Notice of Claim or Plaintiff’s Claim
If you’ve been served with a Notice of Claim (BC) or Plaintiff’s Claim (ON), or any other variation of this, generally just a Statement of Claim, someone has started a lawsuit against you in Small Claims Court. Just as the name implies, this court is for claims that are small, as in valued under a certain amount.
Different provinces have a different maximum values for this court, for example, in Ontario and British Columbia, the limit is $35k, in Alberta, $50k, and in Quebec only $15k. After you've been served, the response process is the same, though. (Side note: Claims in BC under $5k are now settled by the Civil Resolution Tribunal which uses an even more simplified process.)
The document you received should include instructions for all your different options for response, and tell you how much time you have. It’s typically around 20 days, but in BC, the time to respond is just 14 days. If you were served outside of province or outside of Canada, you’ll have more time to file your response.
For smalls claims court matters, you do not necessarily need a lawyer. You could definitely file the response yourself. Depending on the situation you may want to consult a lawyer, though, and if the lawsuit is related to a car accident, contact your insurer before anything else.
Basically your options are this:
- You agree with the claim against you in its entirety, and you either want to pay it in full or want to propose a payment plan.
- You agree with part of the claim, but disagree with other parts.
- You disagree with the entire claim, and you want to dispute.
- You want to make a counterclaim, regardless of whether you agree or disagree with some or all of the plaintiff’s claim.
- You completely ignore the claim and do nothing at all. *NOT RECOMMENDED.
If you don't file a response to the claim within the time limit from the day you received it, the plaintiff can request that the court find you in default, and it will be assumed that you agree with the entire claim. You’ll be required to pay the full amount of the claim and will no longer have an opportunity to dispute. Let’s forget number 5 as an option then and move on.
In BC, the reply process is simple. When you were served the Notice of Claim, you were also given a Blank Reply form. You’ll fill out this form no matter which way you’ve chosen to respond, and you just follow the instructions right on the form. In the dispute section, you write which parts of the claim you wish to dispute, and if you don't dispute anything, leave it blank. In the agreement section, write how much you are agreeing to pay, whether it is the full amount or a partial amount for the parts you agree with. In the counterclaim section, if you wish to make one, you just fill out the reasons for your counterclaim (what happened), and then write how much you think you are owed. Fill out all three copies: one for you to keep (the defendant copy), and the other two you send or bring to the court registry shown on your notice. The registry will file the court copy and send the claimant copy to the person originally made the claim against you.
In Ontario, the form you reply with is called a Defence form. You can use this form in the same way as the Blank Reply in BC, to either accept all or part, or dispute all or part, and to propose a payment plan. If you wish to make a counterclaim, however, you’ll also need to file a Defendant’s Claim form.
You also have the option of contacting the plaintiff directly to try to reach an agreement. If you're successful, you’ll both sign a Consent Order (BC), or Settlement Agreement (AB), or some other variation of this, and the claim will be settled and withdrawn.
If an agreement is not reached, and you dispute all or part of the claim or make a counterclaim, then you’ll need to attend a settlement conference.
If an agreement is still not reached, then there will be a trial.
If You’ve Been Served with a Notice of Civil Claim or Statement of Claim
If you’ve been served with a Notice of Civil Claim (BC) or Statement of Claim (ON), or any other variation of this, someone has started a lawsuit against you in the Supreme Court, also called the Superior Court or the Court of Queen’s Bench. In civil matters, anything that is above the maximum for Small Claims Court gets settled here.
In this case, you probably want to consult a lawyer, or if the claim is regarding a motor vehicle accident, then you should contact your insurer. Most cases started by Notice of Civil Claim in the Superior Court get settled by trial. Having a good lawyer on your side could make a major difference to the outcome, or at the very least might make you more comfortable at the trial because speaking in court can be intimidating.
As with claims in Small Claims Court, once you are served with a Notice of Civil Claim or Statement of Claim, you have a limited time to respond - 20-21 days depending on your province of residence and whether you are within Canada. Again, if you do not file your response within the time limit, judgment could be made against you without your side being heard.
Family Court Claims
Family issues have their own courts in both the Provincial and the Superior Court. In most provinces across Canada, both the Provincial and Superior Courts can settle matters involving child protection, child custody, parenting time, adoption, and support payments, but only the Supreme Court resolves issues of divorce or division of property.
For family issues, you do not always need to have a lawyer, but you may want to depending on your situation and whether you are heading to court. The provincial court system has resources, like family justice counselors, to help you try to resolve family disputes out of court through agreement. In many provinces, you may be actually required to have a family needs assessment, complete a parenting education program, and/or participate in at least one alternative dispute resolution session before you will be scheduled for a date in court.
Chances are, if you’ve been served with documents related to a family matter, this came as no surprise. The exception to this is divorce papers, which sometimes come with no warning at all. If this is your situation, then we’re sorry.
If You’ve Been Served with an Application About a Family Law Matter
If you’ve been served with an Application About a Family Law Matter or Application - General, your ex-partner has started a file in court to have your family issues resolved. You likely have already been trying to work the disputes out on your own or through mediation - unsuccessfully.
Once you have received your copy of your ex’s Application, you have 30 days to prepare and file your response. We recommend getting some legal advice, whether or not you decide to be represented by a lawyer. You can, and should, have a lawyer consultation for advice even if you do not decide to retain them for the entire matter. A lawyer can give you information regarding the forms you will need, they can give you advice on how to reply, and even help you to fill them the forms. They may also be able to help you have your family issues resolve more amicably.
The reply form and any other forms that need to be included with your reply vary province to province and according to your specific situation. In Ontario, you will need to fill out a Form 10 - Answer, and in BC you will need a Form 6 - Reply. In BC, your reply will be sent to your ex by the court after filing, whereas in Ontario you’ll have to have your ex-partner served with your reply. If your case involves claims for support, you will need to include various financial documents, as well.
After your response has been received, you will be scheduled for a Conference with a judge to discuss the issues and decide how your case should proceed. In Ontario, you will first have to attend a Mandatory Information Program (MIP) to learn more about the separation and divorce processes before you can move forward with your case.
If You’ve Been Served with a Motion or an Application About an Order
An Application About an Order, called a Motion in some provinces, is a request made to the judge to make a temporary order. Usually this is used when there is an issue that needs to be decided sooner than the entire parenting agreement can be resolved. Some examples of issues that might need an order are:
- A parent refusing health treatments for a child
- A parent requesting permission to travel (in cases where permission is needed and has been wrongfully denied)
- A parent attempting to change the child’s residence when no agreement about location yet exists
- A parent denying access to a child
- Many, many other reasons but you get the idea
If you’ve been served with such an application or motion, you normally have at least 7 days before the court date. In some provinces you may need to file your responding materials and serve them on the other party a number of days before the court date, so make sure to check the rules in your province. In other provinces, you will only need to bring your materials with you to the court date. In this case, prepare any information you may wish to present as evidence, like affidavits from witnesses.
If You’ve Been Served with an Order
There are certain circumstances when someone could obtain an order from a judge without you being notified ahead of time, and without your side being heard. This happens only in emergency, time-sensitive situations or when there is a risk to someone’s safety.
If you've been served with an Order from a judge, follow the order immediately upon receiving it, whether or not you agree with it. If you want to have the order cancelled or changed, you will need to submit your own application to the court and argue your case.
When You Already Have an Agreement
There may be times when you are served with an application even after you think all of your family disputes have been settled. This can happen when your ex-partner is requesting a change to the existing agreement or order, or if the agreement is not being followed.
As with all of the procedures above, you will need to prepare your response within the time allowed and follow the proper procedures to resolve the dispute.
A Note About Family Matters
Family law is complicated, and each province has different processes and forms depending on your specific situation. The Ontario family law forms page, for example, has more than 130 different forms!
Because family law is complicated, and matters involving your children are super important, you definitely want to reach out to the resources that are available to you, whether you decide to go it on your own or use the help of a lawyer. There are lots of resources out there no matter your financial situation.
For more detailed information about the resources available to you and the processes in place in your province, see the links at the bottom of this page.
Other Things You Might Get Served With
Sometimes you may be served with documents for a case that you are not directly involved in. This can happen for any type of legal matter, whether it be a civil case, a family law case, a criminal case, or others.
If You’ve Been Served with a Subpoena, Summons, or Notice to Appear
Subpoenas, Summons, and Notices to Appear are all court documents that require you to attend court, either as a witness or as one of the parties in the case. If you want to learn more about the difference between a summons and a subpoena, check out our Blawg post here: What is the Difference Between a Summons and a Subpoena?
Your next steps should be outlined for you within the document. There should be a date and time, or estimated date and time, that your attendance is required. If you received a Subpoena or Summons to Witness, there will also be a name and phone number of someone you should call to confirm your attendance, usually the lawyer or someone working for the lawyer of the party requesting your testimony. You will also be provided with witness fees, which is money given to you to help pay for your travel to the trial. You’ll be provided the minimum required amount at the time you are served, but if your travel is significant, you could qualify for more money.
You must attend court on the date and time that you are requested, and your employer has to allow you the time off. You can't be fired, but unfortunately they don't have to pay you for the time you miss.
If you don't attend court when you're supposed to, the judge can issue a warrant for your arrest.. so make sure you go!
Regardless of What You’ve Been Served With
Take care of it. Don’t ignore it. Or if you’ve been running from the process server, stop. The court will find another way. Just sort your s*** out. You’ll feel better once you do. If you need a lawyer, get one. If you want to learn more about the family law processes specific to your home province or find resources that can help you, try some of the links below. If you need info about civil cases or small claims court beyond what we’ve described here, just search online for your province’s court website. Try: Ontario small claims court.
Family Court Resources by Province: