Consequences of the Failure to Serve: A Case Study on Britney Spears and Sam Asghari

By Ryan C. Baker and Ashley Hizo

After 14 months of marriage, Sam Asghari has filed for divorce from Britney Spears, citing “irreconcilable differences.” According to a recent pop culture blog post, it is reported that the parties’ divorce could be dismissed entirely if Asghari or Spears continue to fail in taking any steps towards their divorce application.

Despite filing for divorce with the Court several months ago, Asghari has reportedly failed to formally serve divorce papers to Spears. As such, Spears has not and cannot legally respond to the filing.

While Spears and Asghari are obviously not filing for divorce in an Ontario Court, this case sparks a relevant discussion on the consequences of failing to properly serve another party in an application for divorce.

To start the legal process of obtaining a divorce order in Ontario, a “Form 8A Application” must be filled out. Once competed, this form must then be issued by the Court. Once issued, it is then required to serve your spouse with the now issued application as well as other supporting documents.

Family Law Rule 6 states the following in regard to the service of family law documents:

Methods of service

6. (1) Service of a document under these rules may be carried out by regular service or by special service in accordance with this rule, unless an Act, rule or order provides otherwise.

Age restriction

(1.1) No person shall serve a document under these rules unless he or she is at least 18 years of age.

Regular service

(2) Regular service of a document on a person is carried out by,

(a) mailing a copy to the person’s lawyer or, if none, to the person;

(b) sending a copy by same- or next-day courier to the person’s lawyer or, if none, to the person;

(c) depositing a copy at a document exchange to which the person’s lawyer or, if none, the person belongs;

(c.1) if the person consents or the court orders, using an electronic document exchange;

(d) faxing a copy to the person’s lawyer or, if none, to the person; or

(e) emailing a copy to the person’s lawyer or, if none, to the person, subject to any technical or other requirements that the court may specify.

Special service

(3) Special service of a document on a person is carried out by,

(a) leaving a copy,

(i) with the person to be served,

(ii) if the person is or appears to be mentally incapable in respect of an issue in the case, with the person and with the guardian of the person’s property or, if none, with the Public Guardian and Trustee,

(iii) if the person is a child, with the child and with the child’s lawyer, if any,

(iv) if the person is a corporation, with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be managing the place, or

(v) if the person is a children’s aid society, with an officer, director or employee of the society;

(b) leaving a copy with the person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;

(c) mailing a copy to the person, together with an acknowledgment of service in the form of a prepaid return postcard (Form 6), all in an envelope that is addressed to the person and has the sender’s return address (but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record); or

(d) leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address

There are certain documents that generally require special service, including the Form 8A Application. Once a divorce application and supporting documents are served, the other party then has the opportunity to respond. In doing so, they must also serve any copies they intend to file with the Court to you.

The reciprocal process of serving documents continues for every document that is subsequently filed with the Court. The purpose of this is to ensure that both parties are aware of the case to be met and what evidence will be brought.

Absent proper service, a divorce application cannot move forward. It is at this step where Asghari and Spears may have their divorce dismissed.

In Ontario, a divorce claim can be dismissed after one year if the parties fail to take proper steps (which includes but is not limited to proper service.) Family Law Rule 39(11) states that:

The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail or email if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365^th day after the date the case was started, and that time has not been lengthened by an order under subrule (3).

Failing to serve the other party in a divorce application has dire consequences that may result in dismissal. For any questions related to this article of legal assistance regarding a family law related matter, we encourage you to reach out to one of our experienced family law lawyers at SorbaraLAW.