In this family law case, the husband served his Answer by uploading it to “SIX”, a website where documents can be electronically exchanged between lawyers. The husband brought a motion asking the judge for an order validating service of his Answer by this method, and for an order permitting service of all future documents in his case through the same method.
The husband’s evidence helpfully explained how the SIX website works: a lawyer pays a fee to register on the website, and then pays a further fee to create a file, which allows him or her to upload documents. When a document is uploaded, a notice is electronically sent to the other lawyer in the case, and the other lawyer is given password protected access to the document. The other lawyer does not pay a fee to access documents. However, if the other lawyer wishes to upload a document too, he or she must also pay a fee. In this case, both lawyers were users of SIX.
Justice Perkins found that the “SIX” website satisfied the criteria of Rule 6(2)(c) of the Family Law Rules, which states that “regular service of a document on a person is carried out by depositing a copy at a document exchange to which the person’s lawyer belongs”.
In concluding that SIX satisfies the requirements of Rule 6(2)(c), Justice Perkins considered the explanation of the terms “document”, “depositing”, “exchange” and “belongs” in Rule 2(1):
- “Document” means information, sound or images recorded by any method. This somewhat vague definition allows for electronic documents uploaded to a website to be “documents” within the meaning of the Rule.
- “Depositing” as used in Rule 6(2)(c), in relation to an electronic document, includes uploading it onto a website where it is preserved and can be accessed by another person within a reasonable time. Permanent storage of the documents on SIX is offered, however it is unnecessary for the purposes of the “depositing” definition.
- An “exchange” includes a place where things or services are exchanged, and SIX’s entire purpose is to provide a place where lawyers exchange electronic documents.
- The lawyer “belongs” to this exchange because he or she is notified that a document has been uploaded and is able to access the document.
Justice Perkins accordingly granted an Order confirming that the husband’s Answer was served in accordance with Rule 6(2)(c) and advised that no order was necessary to authorize further use of SIX for ordinary service of documents in this case, as the rule itself authorizes this.
This case demonstrates the judiciary’s willingness to accept modern technology as a way to improve access to justice.
Document service through SIX is secure and saves both time and money throughout an inherently stressful and expensive process. Currently, the majority of family lawyers in Ontario are not using of this method of document exchange.
As more family lawyers become aware of SIX and its many benefits, it is likely that they will take advantage of this interface and that other similar document exchange websites will be developed.