Respond to an application to set aside all or part of an agreement in Supreme Court

Supreme Court

Introduction

You've been served with a Notice of Application (Form F31)

The applicant has served you with this form because they're asking the Supreme Court to set aside all or part of an existing agreement, and they think you won't agree with the change they're asking for. This includes any parenting orders (for guardianship, parenting time, contact, custody, or access) or orders for child or spousal support (including cancelling or reducing arrears).

You must respond to this application within 14 business days. If you don't respond, the applicant can continue with the application and will appear at the court hearing without you. The judge can make orders in your absence.

If you agree with the proposed changes to the agreement

If you don't want to oppose (fight) the application and you're willing to agree to the other person's request to change the agreement without going to court, let them know. They can then withdraw the court application and you can sit down and come up with a new agreement together.

For more information about coming to an agreement, see:

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.

How do you find a lawyer or get legal aid?

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

For information about legal aid, see the Legal Aid BC website.

Read the application carefully

You'll need

  • The applicant's completed documents:
    • Notice of Application (Form F31)
    • Affidavit (Form F30)
    • Financial Statement (Form F8), if support is an issue
The date and time for the hearing will be written on the Notice of Application. Put this on your calendar. You won't get any further notice of the hearing date.

Read the Notice of Application, Affidavit, and Financial Statement carefully to understand what the applicant's asking for.

You must respond to the application within 14 business days from the time you're served with these documents. (If you receive the documents after 4 pm, calculate the 14 days from the next business day.) If you don't respond, the other person can continue with the application and will appear at the court hearing without you. The judge can make orders in your absence.

If the applicant doesn't arrange a Judicial Case Conference (JCC) before making their court application, you might want to consider arranging one. A JCC is optional when you're applying to change an order, but having one can save you time and money. The JCC gives you and the other person the opportunity to sit down with the judge and either resolve your case without going to court, or help you to prepare for the court hearing. For more information on JCCs, see Judicial Case Conferences in Supreme Court.

Even if you'd like to have a JCC before the hearing, you still need to respond to the application in time or ask the applicant to postpone the hearing until after the JCC.

Prepare the court documents

You'll need

  • An Application Response (Form F32) (PDF) (Word)
  • The original of any Affidavit (Form F30) (PDF) (Word) and every other document you will be referring to at the hearing and that has not already been filed
  • Financial Statement (Form F8) and related documents, if support is an issue

Fill out the forms and gather the supporting documents

For help writing the Affidavit, see:

You'll need to fill out, file, and serve a Financial Statement if the other person's applying to change an order for child or spousal support. See Complete a Supreme Court Financial Statement (Form F8) to find out more about this.

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

Swear or affirm the documents

You'll need

  • Your Affidavit (Form F30)
  • Your Financial Statement (Form F8) (if required)

After you've completed the Affidavit (Form F30) and the Financial Statement (Form F8) (if required), you must swear or affirm that the information that appears in these documents is true. Any exhibits to your Affidavit must also be stamped and sworn.

You have to do this in front of a:

  • lawyer,
  • notary public,
  • government agent, or
  • clerk at the court registry.

See Who can swear an affidavit? to find out more about this.

Bring picture identification with you.

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

Copy, file, and serve the documents

You'll need

  • Your completed forms:
    • Application Response (Form F32)
    • Every Affidavit (Form F30) and every document you intend to refer to in court, if it hasn't already been filed at the registry as part of this case.
    • Financial Statement (Form F8), if needed
  • $25 to file an Application Response
  • The other person's address for service
  • An Affidavit of Ordinary Service (Form F16) (PDF) (Word)

Make copies

Make three copies of all your completed documents and any exhibits or attachments:

  • The registry keeps the original.
  • One copy's for you.
  • One copy's served on the other person.
  • One copy's to attach to the Affidavit of Ordinary Service (Form F16).

File the forms at the court registry

Take the original and the three copies, plus the filing fees, to the Supreme Court registry.

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. They'll give the stamped copies of the forms back to you.

Give the documents to the other person

You need to serve the Application Response, Affidavits and any exhibits that haven't already been served, and Financial Statement (if you completed one) on the other person within 14 business days of being served with the Notice of Application (Form F31).

You can serve these documents by ordinary service. This means that you can:

  • leave the documents at the other person's address for service (the address they put on their court documents, such as their Notice of Application),
  • mail the documents by regular post to the other person's address for service, or
  • email or fax the documents, if the other person provided an email address or fax number as part of their address for service.
See Serve Supreme Court documents by ordinary service for more information on serving documents and help with filling out an Affidavit of Ordinary Service (Form F16). If the other person doesn't attend the hearing, the Affidavit of Ordinary Service will prove to the judge that you served the documents.

Receive and review further documents

You'll need

  • Any new affidavits from the applicant
  • The Application Record Index

More affidavits

After the other person receives your documents, they might send you one or more additional affidavits. These documents must be served on you before 4 pm on the business day that's the business day before the date set for the hearing. Any new affidavits should contain only new information not included in the earlier affidavits served with the Notice of Application (Form F31).

Application Record Index

The other person must provide the court with a binder of all the material for the hearing, including your Response and your affidavits. This is called the Application Record. The other person must provide you with the index to the Application Record, which lists the documents that are included in the binder, no later than 4 pm on the business day that's the business day before the hearing.

If any documents are missing from the index

Review the index carefully to make sure that all the documents you want to show to the judge are included in the Application Record. If something's missing from the index, tell the other person immediately, by fax or email if possible, and ask them to include the missing documents. (Make a copy of this letter for the judge.)

Bring two extra copies of any missing documents to the hearing so that you can give one each to the judge and the other person, if necessary. Bring along the Affidavit(s) of Ordinary Service to prove that the documents were delivered to the other person and should have been in the Application Record.

You can make an Application Record for your own use in court. An Application Record can help you to organize the information and evidence that you need in court. See Step 6.
If you and the other person come to an agreement before the hearing about any of the orders that the other person wants, you can change your agreement without going to court, or you can both go to court on the date set for the hearing to tell the judge that you've both agreed. The judge can then make a consent order that will replace all or part of your agreement.

Make an Application Record, if you want one

You'll need

  • All the documents you received from the applicant
  • All the documents you filed in your Response
  • The Application Record Index
  • A ring binder large enough to hold all the documents
  • Divider tabs

If you want, you can make your own copy of the Application Record. An Application Record is a loose-leaf ring binder, divided by tabs, that contains your information and evidence and includes a table of contents, called an index. The other person is responsible for providing the Application Record to the court and for sending you a copy of the index so that you can see what's in the Application Record.

The Application Record will help you to organize the information and evidence that you need in court, making it easier for you to follow the court proceedings, because you, the judge, and the other person will all have the same materials, in the same order.

If you want your own copy of the Application Record, you have to make one. Refer to the index of the Application Record that the other person sent you.

Insert all your documents, and those you received from the other person, in the order they appear in the index. You can use the Application Record index that the other person sent you for your binder. If materials are missing from the index the other person gave you, add them to the end of the index you're working with.

The Application Record can also 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. The Application Record must not include Affidavits of Service, copies of authorities, or other documents unless the other person has agreed to you including these.

Appear in court

Getting ready for your court appearance

You'll be appearing in Chambers to ask a judge to respond to the application to change your order. To find out more about Chambers, see What happens in a Supreme Court Chambers hearing?

If you can't attend or you're not ready

If the date on the Notice of Application won't work for some reason (for example, if you aren't ready), you must still go to court and stand up and ask for an adjournment. If you really can't go to court on that day, ask someone to go in your place to ask for an adjournment. This person will need an Affidavit from you, or at least a signed letter from you explaining your circumstances. You'll have to give a good reason for asking for an adjournment. If you don't show up without an explanation, the judge might make the order the other person asks for in your absence, and order costs against you.

Review and sign the order

You'll need

  • An Order Made After Application (Form F51) (PDF) (Word)

If the judge sets aside all or part of the agreement, they can make other orders to replace what's been set aside.

Who writes the order?

After you appear in court, the other person (or their lawyer) will prepare an order that says what the judge decided. If you or the other person is represented by a lawyer, the court usually requires that the lawyer prepare the order, no matter who started the application. Ask for a chance to review and sign the order once the lawyer has written it, before it's given to the court registry.

If you disagree with the way the order's written, you can request a copy of the clerk's notes from the registry to compare what the judge said with what's been written in the order. If you still disagree, you can apply to have the order settled. This means that the court registrar will figure out what the order should say. Get legal advice if this happens.

Disagreeing with what was ordered isn't the same as disagreeing with how it was written down in the order. If you disagree with what was ordered, get legal advice as soon as possible. You need to know if an appeal would be appropriate:

  • If it would be appropriate, there are important time limits for filing an appeal you need to know about.
  • If it wouldn't be appropriate, you'll need to decide if you want to go to trial.

Appeals are only successful if there's a significant error in the law. This doesn't happen often in family Chambers applications.

If you agree that the order as written or amended is correct, sign in the correct place on the last page of the order and return it to the person who sent it to you. Ask for a copy of the entered (filed) order to be sent to you. Before you return the signed order, make a copy of it for your records.

Get a copy of the order

The other person will pick up the signed and entered order and mail a copy to you. This signed order is your official court order. Be sure to keep a copy of it.

If you don't receive a copy of the order within three or four weeks, you can go to the court registry and ask whether the order's been entered. If it has been, you can get a copy of the filed order from the court file. You might have to pay for photocopying.

If the court makes a child or spousal support order, you might want to register the order with the Family Maintenance Enforcement Program (FMEP). FMEP's a provincial government service that helps people get the maintenance payments they're entitled to. If you're a payor under an order, it can be to your advantage to register, because FMEP keeps an accurate record of all the payments you send. This prevents disputes (arguments) with the other person about whether money has been paid under the order.

See the Family Maintenance Enforcement Program page on the BC government website for more information about the program.

See the FMEP website for information about how to contact FMEP.

You've now gone through all the steps required to respond to an application to set aside an agreement in Supreme Court. Thank you for using our self-help guide.