Q and A about Affidavits of Service

Recently I met with some people who have been carrying on a lawsuit on their own without a lawyer. They are doing remarkably well, considering the challenges of a complex system that has its own mysterious vocabulary and procedures. Every now and then they drop by and ask me a few questions. They raised one the other day that I'd like to discuss here.

These clients were asking about Affidavits of Service. I thought I'd put together a few important points about these documents in case anyone else is in the middle of the same process:

What are they?
An Affidavit of any kind contains sworn evidence that will be put on the court record. Service means giving court documents to someone in the right way at the right time. Putting those two concepts together, an Affidavit of Service is evidence of how and when a person was served with legal documents.

Why do one?
In the context of estate litigation, a person may need to be served with a Statement of Claim or an Originating Notice, both of which begin a lawsuit. Once that has happened, a person may need to be be served with affidavits and notices of interlocutory applications. The point is to ensure that the people on the other side of the lawsuit have fair notice of what's happening. If you're suing someone, it's up to you to make sure they get this notice properly.

What if I don't do one?
The courts are strict about making sure that notice is properly given. If you show up in court and the other party is there, you probably won't be asked to give any proof that you served them. Obviously, if they are there, they know about it. But what if they don't show up? At that point, the judge wants proof that they were given documents about the court case, and that these were delivered in the proper time frame. This is where your sworn Affidavit of Service comes into play. If you can't prove that you served the right people at the right time, the judge will most likely postpone your court case until you can give that proof.

Who do I have to serve?
You serve everyone who is a party to the lawsuit. This doesn't mean witnesses. It means anyone who is named on the paperwork. If you're the plaintiff or applicant, you serve each and every person named as a defendant or respondent. In estate litigation, you always serve the executor or administrator.

Who gets a copy of it?
The Affidavit is for the court. Once your Affidavit is ready, you take it to the courthouse and file it on your lawsuit. That gets it into the judge's hands. You also keep a copy  of it for yourself. Make a note on your copy of when you filed it (date and time). You don't have to give a copy to the person you served the documents on, or to anyone else.

Will the court charge a fee for filing it?
No. You paid your fee when you filed your Statement of Claim or Originating Notice. The Affidavit of Service is part of that lawsuit so you don't need to pay another fee.

For more detailed information and instructions about Affidavits of Service (and hundreds of other litigation-related topics, check out my book Contesting a Will Without a Lawyer: The DIY Guide for Canadians. This link goes to the publisher's page where the book is available as a hard copy with a free download for the forms, or as an e-book. You can also buy the book at Indigo and at Amazon.