It’s not unheard of for a spouse to suddenly move away, never to be heard from again. When this happens, the sudden disappearance can create major hurdles for the remaining spouse if he or she wants to claim support or seek divorce.

One of the fundamental principles of the common law system is that parties ought to have meaningful opportunity to participate in the process; often this means notice. When proper notice is not given to a party, the fairness of the proceeding is greatly tainted.

Readers can appreciate that if the wife or the husband moves out of the matrimonial home and vanishes, the one remaining may have trouble finding the former partner and giving him or her the proper notice required under the law.

The law requires that the remaining party exercise reasonable efforts to locate the one who ran away. If the whereabouts of the disappeared can be ascertained, he or she must be served according to the rules.

A lawyer’s office can help with the task of locating the missing person, having access to searches that are generally not available to the public. An MTO or driver’s licence search may be conducted if the lawyer undertakes not to use the results for purposes other than the anticipated litigation.

If the husband or wife cannot be found directly, the court may permit substituted service through a friend or relative who remains in contact with the disappeared.

If all else fails, the court may consider an order dispensing with service if it’s satisfied that all reasonable efforts have been exercised and the other side is intentionally evading service. However, dispensing with service is hardly a solution to the problem. Because ex-parte (without notice) litigation violates the principles of procedural fairness, once the other side becomes aware of the proceeding, he or she may be entitled to move to set the results of any ex-parte proceeding aside and start afresh.

PSWLaw in Toronto is your family law advocate.

Call 416-433-5531 for an appointment today.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.