BAINS v KAUR, 2018 ABQB 624
11.27: Validating service
11.28: Substitutional service
11.30: Proving service of documents
11.31: Setting aside service
12.55: Service of documents
12.57: Proof of service
The Defendant in a divorce Action applied for an Order dismissing the Statement of Claim, asserting that service was defective (the “Service Application”) or alternatively transferring the Action from Alberta to Ontario (the “Transfer Application”). Justice Lema heard the Applications in Family Chambers and, at the close of submissions, asked counsel for the parties to provide written submissions.
In considering the Service Application, Justice Lema noted that, in lieu of the personal service required by Rule 12.55, the Plaintiff had: (i) failed to obtain an Order for substitutional service (under Rule 11.28); (ii) sent the Statement of Claim by registered mail to the wrong address; (iii) failed to file an Affidavit of Service (under Rule 11.30); (iv) not complied with Rule 12.57, which mandates that absent a Court Order the Affidavit of Service include a picture of the person served with a Statement of Claim for divorce; and (v) failed to apply to the Court for an Order validating service (under Rule 11.27).
Notwithstanding the above transgressions, Lema J. emphasized that, pursuant to Rule 11.31(1), no challenge to service can be made after filing a Statement of Defence. Justice Lema noted that the Defendant’s Application to challenge service was filed twelve days after she had filed her Statement of Defence. While neither party had addressed Rule 11.31(1), Justice Lema concluded that even if inclined to dismiss the Statement of Claim on the basis of defective service, the Court was barred from doing so under Rule 11.31(1).
Turning to the issue of the Transfer Application, Lema J. engaged various rules under the Divorce Act, RSC 1985, c 3 (2nd Supp) and corresponding jurisprudence surrounding transfer applications in divorce proceedings involving children. Justice Lema concluded that, given the circumstances, the divorce proceeding underway in Alberta should in fact be transferred to Ontario.View CanLII Details