Set aside all or part of an agreement in Supreme Court

Introduction

About this guide

This guide is for you if you have a family agreement dealing with parenting, support, and/or property and debt, and:

  • the agreement is, or will be, filed in Supreme Court,
  • you want to set aside (cancel) or replace all or part of the agreement and get a new court order, and
  • you can't agree with the other person.

This includes the parts of the agreement to do with:

  • guardianship,
  • parenting time,
  • allocation of parental responsibilities,
  • contact with a child,
  • parenting coordinators,
  • spousal support, and
  • child support.

Please read through all of this guide before you begin so that you understand the documents and forms you need to prepare and what you can expect in court.

You can’t use this guide to set aside only the part of an agreement that is about dividing property and/or debt. For that, you have to fill out and file a Notice of Family Claim (Form F3). See our step-by step guide Start a family law case to get a new order in Supreme Court.

Get legal help

It's a good idea to get some legal help before you begin the guide. If you can't afford a lawyer, there are other ways to get legal help, including:

At any stage of the proceedings — even during a trial — you can make an agreement with the other person and have a judge make a consent order in court covering what you both agree upon.

File your agreement

You'll need

  • A copy of your existing agreement

File your agreement at the registry

You can only apply to set aside your agreement if it's filed with the court. This means you give the registry the copy of your agreement and they put it in a court file for you.

If you haven’t already filed your agreement, see File your agreement in Supreme Court. Either you or the other person can file it.

Once you file an agreement, you have an open family law case and you can take steps to set aside your agreement.

Consider scheduling a Judicial Case Conference

A Judicial Case Conference (JCC) is optional if you're applying to set aside all or part of an agreement. But you should consider whether it would be helpful to attend in your case, even if you don't have to.

A JCC is a confidential meeting with a judge or master and the other person before a court application's made. It provides a good opportunity to see if you can resolve your case without going to court or, if you do end up going to court, to understand what you need to do to prepare for the court hearing.

If you think a JCC might help, see Deal with a Judicial Case Conference and Judicial Case Conferences in Supreme Court. If you don't want a JCC, or you had one but didn't come to an agreement, follow this guide to get a Chambers hearing.

Prepare the court documents

You'll need

Fill out the forms and complete the documents

If you don't have a JCC, or don't work things out there, you need to complete several forms.

On the Notice of Application, you'll ask the court to set aside all or part of your agreement. You can also ask the court to make new orders to replace any parts of the agreement that are set aside.

For information about what to put into the Notice of Application, see Write a Supreme Court order.

For help writing the Affidavit, see:

The forms contain technical instructions to help you fill them out. For more help using the forms, see:

For help filling out a Financial Statement (if you're applying to change an order for child or spousal support), see Complete a Supreme Court Financial Statement (Form F8).

Swear or affirm the documents

After you've completed the Affidavit (Form F30), and the Financial Statement (Form F8) if you need one, and attached all the relevant documents, you must swear or affirm that the information that appears in these documents is true. You have to swear or affirm your documents in front of a lawyer, notary public, government agent, or clerk at the court registry. See Who can swear an affidavit? for more information about this.

Take photo identification with you.

Some people charge a lot more for this service than others. It's a good idea to shop around.

Copy, file, and serve the documents

You'll need

  • Your completed documents:
    • Notice of Application (Form F31)
    • Affidavit (Form F30) to support the application (with any attachments)
    • Financial Statement (Form 8), if required
    • Any other supporting Affidavits or documents that you intend to refer to at the hearing, but that haven't already been filed
  • $80 to file a Notice of Application
  • Someone to serve the documents on the other person

Make copies

Make three copies of all your documents:

  • The registry will keep the original
  • One copy's for you
  • One copy's served on the other person
  • One copy's to attach to the Affidavit of Personal Service (Form F15)

File the documents at the registry

Take all the copies of your documents, plus the filing fee, to the registry more than 21 business days before the date set for the hearing. (This means that 21 business days must pass in between the day you serve the documents and the hearing day.)

A clerk at the registry will take your money, check your documents, stamp them with the court seal, and put the originals into the file for your case. The three copies of the forms will be returned to you.

Serve the documents on the other person

Serve the documents on the respondent, including the filed Notice of Application, at least 21 business days before the date set for the hearing. (This means that 21 business days must pass in between the day you serve the documents and the hearing day.)

These documents must be served by personal service. See Serve Supreme Court documents by personal service for step-by-step instructions for how to serve these documents.

Have the Affidavit of Personal Service (Form F15) ready to show in court in case the other person doesn't show up. This will prove to the judge that the other person has the documents and knows about the hearing.

If you're applying to change support and your agreement was registered with the Family Maintenance Enforcement Program (FMEP), you need to send FMEP one copy of all your documents. Send the documents to the FMEP office where the order was registered. You can mail or fax them. If you mail the documents, you'll need to make another copy.

See the FMEP website for contact details.

Wait and respond

You'll need

  • To wait up to 14 days to receive the other person's response
  • An Affidavit (Form F30) (PDF) (Word), if they raised new facts or issues in their response
The other person has 14 business days from the time they're served with your Notice of Application (and other documents) to respond to the application. They do this by filing documents at the court registry and then serving them on you.

If they agree with your application

If the other person agrees with what you're asking for, you can either:

  • sit down and work out a new agreement together, or
  • both show up in court on the date set for the hearing and ask for a consent order.

If they don't agree with your application

If the other person opposes the application, they must file their response at the court registry and serve you with a copy of their response within 14 business days of being served with your documents.

You only need to file a responding Affidavit if the other person has raised new facts or issues in their Affidavit that you haven't already addressed, and that you believe need a response. If you don't need to file a responding Affidavit, you can go straight to Step 5.

In your responding Affidavit, respond only to those new issues or facts that you haven't already addressed in your earlier Affidavit to support the application. Your responding Affidavit must contain:

  • a description of who you are, and
  • your response to the new facts or issues raised in the other person's Affidavit.

You must file your responding Affidavit with the registry and serve it on the other person no later than 4 pm on the business day that's one full business day before the hearing date.

For help writing the Affidavit, see:

The Affidavit contains technical instructions to help you fill it out. For more help, see:

The court rules say that, after you file this affidavit, no one can file new affidavits unless you both consent (agree).

Make the Application Record

You'll need

  • Two ring binders big enough to hold all the documents related to your case (1‑inch or 1.5‑inch are common)
  • Two sets of tabbed binder dividers numbered 1 to 15, or higher
  • Some loose-leaf paper
  • A three-hole punch
  • A Supreme Court Application Record cover page (PDF) (Word)
  • An Application Record index (PDF) (Word)
  • A sample completed Application Record index (PDF)
  • Two elastic bands big enough to go around the binders

An Application Record is a loose-leaf ring binder, divided by tabs, that contains the evidence that the judge or master will use to decide whether to change your order. It includes a table of contents (called an index), and contains photocopies of the documents you've collected, including those sent by the other person.

You need two copies of the Application Record — one for you and one for the court. The court copy will be returned to you at the end of the court hearing. You don't have to make a copy for the other person.

What goes in an Application Record?

The Application Record can include draft orders, written arguments, lists of authorities (any case, textbook, article, or statute you might use to support your argument), or a draft bill of costs.

Your Application Record must not include Affidavits of Service, copies of authorities, or other documents unless the other person has agreed to let you include these.

Make a cover page

Prepare a cover page for the outside of the binder that contains:

  • the style of proceedings (names of both of you), court file number, and registry,
  • the title "APPLICATION RECORD" and a brief description of what the material is about (for example, "Application to change an order for child support"),
  • contact information for each of you or your lawyers, including addresses for service, phone and fax numbers, or email addresses that the registry can use to contact you,
  • the time, date, and place of the hearing,
  • the name of the person or lawyer who's filing the Application Record, and
  • the estimated length of time for the hearing.

Make a title page

Prepare a title page for the inside of the binder. The title page should have the style of cause, your name and the other person's name, and the names of your lawyers, if you have lawyers. The style of cause is in your previous order (all the information above the title of the document). Copy this information exactly as it appears on your order.

Add the dividers and documents

  • Number your tabbed divider pages consecutively starting at 1, if they aren't already numbered.
  • Punch holes in each page of your remaining set of photocopied documents, and put them into the binder behind the numbered tabs in the following order:
    • Behind Tab 1, insert one copy of the filed Application (Form F31).
      You must also include an extra loose copy of the Notice of Application (Form F31) with your Application Record. On that copy, highlight or mark in some way which orders you'll be referring to at the hearing.
    • Behind Tab 2, insert the Application Response (Form F32) from the other person (if you receive one).
  • Insert the remaining documents behind the subsequent tabs in the following order:
    • Your Affidavit to support the application.
    • Any of your previous Affidavits that you want the court to consider.
    • An Affidavit in response to the application from the other person, if you receive one.
    • Your responding Affidavit, if any.
    • Your most recent Financial Statement (Form F8) and any attachments.
    • The other person's most recent Financial Statement and any attachments, if you received them.
  • Insert any of the other person's Affidavits and Financial Statements behind tabs.

Make an index

Download a blank Application Record index form and use it to create a table of contents for the Application Record. List all the documents in the Application Record in the table of contents. Insert the completed index before Tab 1 and behind the title page.

Make a second Application Record

Repeat the whole process to create a second Application Record.

File the Application record and serve the index

You'll need

  • One copy of the complete Application Record
  • One copy of the Application Record index only

File the Application Record at the court registry

Give one copy of the full Application Record to the court registry.

The court registry has limited space for storing hearing materials, so you must file your application record:
  • after 9 am on the business day that's three full business days before your hearing, and
  • before 4 pm on the day that's one full business day before the date set for the hearing.

Serve the Application Record index

If the other person responded to your Notice of Application, serve them a copy of the Application Record index. You can serve the index by ordinary service.

You must serve the index no later than 4 pm on the day that's one full business day before the date set for the hearing in your Notice of Application (Form F31). (This means that one full business day must pass in between serving the index and the hearing day.)

Appear in court

You'll need

  • Your copy of the Application Record
  • An Order Made After Application (Form F51) (PDF) (Word)

Go to court

You'll be appearing in Chambers to ask a judge to change your order. See What happens in a Supreme Court Chambers hearing? to find out more about Chambers.

Prepare the Order Made After Application (Form F51)

After you appear in court, you have to prepare an Order Made After Application (Form F51) that says what the judge decided. If you or the other person has a lawyer, the lawyer's usually required by the court to prepare the order even if they're not your lawyer. Ask to review and sign the order as written by the lawyer before it's given to the court registry.

The Order Made After Application contains technical instructions to help you fill it out. For more information about preparing orders, see:

File the order at the court registry

You'll need

  • A copy of the completed and signed order

Make a copy of the completed and signed order and take it to the court registry where the hearing was held.

The court registry staff will review the order, then have it signed by the court, stamped, and entered or filed. Keep your copy of the draft order for your records until you get the entered order.

Entering the order can take several weeks. Ask the court registry clerk when you might be able to pick up the entered order.

 

Pick up the order and send copies

You'll need

  • The approved order
  • A copy of the order for the other person
  • A copy for FMEP, if necessary

Pick up the approved order

You must either go to the court registry to pick up your order or provide a self-addressed envelope and ask the clerk to mail it to you. The entered (signed, sealed, and filed) order is your official court order. Be sure to keep a copy of the order for yourself.

Give a copy to the other person

You're responsible for mailing, giving, or emailing a copy of the entered order to the other person. Do this as soon as possible.

If support is included in the order, you might want to send a copy of the entered order to the Family Maintenance Enforcement Program (FMEP). FMEP's a provincial government service that helps people get the maintenance payments they're entitled to.

Learn more about how the program works on the BC government website, or find out how to contact FMEP on their website.