Can I serve my ex with court documents on Facebook?
Social media is beginning to change the traditional practices of the legal system. Some uses of social media in legal system may be obvious: for example, using Facebook to collect evidence, or how oversharing on social media can have legal consequences. In recent Ontario court cases, however, social media has been used for a less obvious purpose: serving documents. In this post, Olivia Giacobbi, a Fresh Legal intern from the University of Ottawa law school, discusses service by social media.
What is service?
Service is the legal process of giving an opposing party your court documents. Serving documents makes parties aware of any legal claim or request that affects them. The Family Law Rules outlines specific methods of serving your documents, and timelines that need to be followed. After you serve your documents, you complete an Affidavit of Service, which is a sworn document letting the court know who served the documents, when they were served, and how they were served.
Usually service is done in person, by fax, mail, and if approved by a judge or consented to by the parties, email. However, in recent cases, judges have given special permission for documents to be served on opposing parties by Facebook and LinkedIn.
Facebook… If all else fails
Service through Facebook, or any other social media platform, is not common practice. However, if all else fails, serving documents through social media is a new tool in family law cases.
A judge may allow service by social media if the serving party can show they took reasonable steps to locate and serve the opposing party. They also need to prove that the method of service would bring the document to the party’s attention. Overall, this typically means the party must exhaust all reasonable physical methods of service and have evidence that the party was recently active on the social media account.
Challenges and Opportunities When Serving by Social Media
Each social media platform has different privacy and messaging standards, which the court will likely consider. An account and platform must be secure to ensure confidentiality of documents. There may also be concerns about the legitimacy of social media profiles (i.e. whether the profile is really of who it claims to be).
Most social media messaging application are sophisticated enough to let a sender know if a message has been open, at what time it was opened, and even where it was opened. All these components pose a barrier for the opposing party to deny being served and increase the validity of service by social media.
What platforms can be used to serve?
Currently, Facebook has been the most used social media platform for serving documents in Ontario. LinkedIn and Twitter have also been used in other provinces as alternative methods of service. Social media that offers secure private messaging and the ability to attach a document, or possibly even a photo of a document, can be considered as a platform for serving documents if all other traditional methods fail. Remember, service by social media is the exception, not the rule, and needs to be approved by a judge.