Set aside all or part of an agreement in Provincial Court

Provincial Court

Introduction

Court operations during COVID-19

Because of COVID-19, many conferences, hearings, and proceedings are being held by phone or videoconference at this time. For more information, see:

The courts can’t change a family agreement. But you can ask them to replace all or part of one with a new court order (to set aside an agreement).

You can apply to set aside all or part of an agreement if you:

  • have a family agreement dealing with parenting, support, or property and debt,
  • have tried to resolve your issues on your own but can't,
  • have tried to resolve your issues with the help of a mediator or other service but can't, or
  • don't think it'll be possible to resolve your issues.

A judge won't set aside all or part of an agreement and make a new order just because one person isn't happy with the agreement. The judge must consider many factors, depending on the issue involved.

If your case is in Victoria, you will follow different procedures. See Family matters at the Victoria Courthouse.

 

Type of agreement Guidelines for judges
Guardianship, parental responsibilities, and parenting time Is the existing agreement in the best interests of the child?
Contact with a child Is the existing agreement in the best interests of the child?
Child support Would the new order follow the rules in section 150 of the Family Law Act?
Spousal support Was the process used for making the agreement unfair? For example, did one spouse not share financial information or take advantage of the other spouse’s vulnerability? Or did one spouse not understand what they were signing?

OR

Is the existing agreement itself unfair because circumstances have changed or for one of the other reasons listed in section 164(5) of the Family Law Act?
Read through this whole guide before you begin so you understand the documents and forms you need to prepare and what you can expect in court.
If you and the other person can agree about your issues, you won't have to go to court. You can make a new agreement instead of having a judge or master set aside your agreement. See Who can help you reach an agreement? for more information about this.

Where will it all take place?

Any court documents must be filed in the same registry where the agreement was filed. If you must appear in court, you'll appear in the courthouse where you file your application. (If a court order to change the registry has been issued since your case began, you'll file your application and appear in court in the changed location.)

How long will it take?

Around four weeks is a typical waiting time for a first appearance, if the other person files a Reply. The length of time before your first appearance in front of a judge varies with the location of the Provincial Court.

A trial or hearing date can take many months to arrange. If a trial's going to take more than one day because there are many witnesses, it's common for the trial date to be more than six months after the court appearance where the date is fixed.

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.

Get legal help

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

Staff at Justice Access Centres in Nanaimo, Surrey, Vancouver, and Victoria can also answer your questions and help you fill out forms.

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

File your agreement

Court registry services during COVID-19

Provincial Court registries are open and accepting filings in person. The court still prefers that you file documents by email, mail, fax (to fax filing registries), or by using Court Services Online where available.

You'll need

  • A copy of your signed agreement

Before you can apply to set aside cancel) your agreement, it needs to be filed with the court. Either you or the other person can file it.

Filing an agreement is very straightforward:

  1. Make a copy of your signed agreement.
  2. Take the copy of the agreement to the Family Court registry located at the courthouse.
  3. A clerk at the registry will check your agreement, stamp it with the court seal, and put it into a file for your case.
You might find it convenient to file it at the registry closest to where the children normally live or, if there are no children, to where you live. See BC Provincial Court Locations and Hours for a map and list of court registry addresses.

Fill out the court forms

You'll need

This guide includes links to online blank forms and instructions for filling them out. You can also get free printed forms from the Family Court registry in the town or city where you live.

If you use the online forms, you can fill out the forms online or print them and fill them out by hand (print legibly using dark-coloured ink).

If you download the forms from this site, you'll have to make several copies of everything. If you use forms from the registry, the copies you need are already included in some of the forms booklets.

On these forms, you're called the applicant. The other person (the law calls them the other party) is called the respondent.

If you're applying to set aside the parts of the agreement about support payments, you have to show that either your or the other person's financial situation has changed since you made your agreement. The court will need evidence of this.

If you don't have details of the other person's finances, you can get them from the Financial Statement they give you. Your agreement might have information about what your and the other person's financial situation was at the time the agreement was signed. You'll need this information if you go to trial.

If you need help with the forms, see Where can you get help with filling out court forms?

Complete a Financial Statement (Form 4)

See Complete a Provincial Court Financial Statement (Form 4) to figure out if you have to file one (and for help filling it out if you need to).

Swear or affirm the Financial Statement

Your next step is to swear or affirm that what you've written in the Financial Statement (Form 4) is true. You have to do this in front of a:

  • lawyer,
  • notary public,
  • government agent, or
  • commissioner of oaths.

Some staff at the Family Court registry are commissioners of oaths and might provide this service for free. Bring picture identification with you, such as a:

  • BCID card,
  • BC Services card,
  • driver's licence, or
  • passport.

File the documents

Court registry services during COVID-19

Provincial Court registries are open and accepting filings in person. The court still prefers that you file documents by email, mail, fax (to fax filing registries), or by using Court Services Online where available.

You'll need

  • The original forms and attachments, which you'll give to the court (called the Court file copy).
  • Three sets of photocopies:
    • a set for you (the Applicant's copy),
    • a set for the other person (the Respondent's copy), and
    • a set for the person who'll serve the other person (the Proof of service copy — see Step 4)
  • Two more sets of copies, if needed:
If you fill out the forms online, you can print as many copies as you need. If you download the forms and fill them out by hand, you'll have to make photocopies.

The Application to Obtain an Order (Form 1) booklet from the Family Court registry contains all the copies you need. The Financial Statement (Form 4) booklet includes just one copy, so you'll have to photocopy the pages.

File your documents at the court registry

Take all the sets of copies of your documents to the Family Court registry where the original agreement was filed and give them to the registry clerk.

The registry clerk will keep the original documents for the court file copy. They'll stamp the other copies and return them to you.

Filing documents in Provincial (Family) Court is free.

If you made copies for FMEP or the Ministry of Social Development & Poverty Reduction, ask the registry staff if they can send those copies to the programs for you.

If the registry staff don't send your documents to those programs:

  • If you're applying to change the amount of support in an order that was originally filed with FMEP, mail or fax the documents to the FMEP office where the original support order was filed. See the FMEP website for current contact information.
  • If you're on income assistance, mail or fax your documents to the Ministry of Social Development & Poverty Reduction.

Fulfill the registry requirements

The registry clerk will let you know if you must complete these requirements before you can go to court.

Rule 21 registries

If you live in a Rule 21 registry, you must attend a Parenting After Separation class before you can go to court to get most orders.

  • Abbotsford
  • Campbell River
  • Chilliwack
  • Courtenay
  • Kamloops
  • Kelowna
  • Nanaimo
  • New Westminster
  • North Vancouver
  • Penticton
  • Port Coquitlam
  • Prince George
  • Richmond
  • Surrey
  • Vancouver (Robson Square)
  • Vernon
  • Victoria

Rule 5 registries

Some Rule 21 registries are also Rule 5 registries. If you live in a Rule 5 registry, you must attend a Parenting After Separation course and meet with a family justice counsellor before you can go to court to get most orders.

  • Kelowna
  • Nanaimo
  • Surrey
  • Vancouver (Robson Square)

Give the documents to the other person

There are strict rules about how to give (serve) court documents to the other person (the law calls them the other party).

For an application to set aside an agreement, you must arrange for personal service of the documents by a third person. You can't serve the documents yourself. The person who serves the documents must be 19 or older, and can be:

  • a professional process server, or
  • a friend you ask to serve the documents for you.

Give the process server these documents:

  • the Respondent's copy of your filed documents, including:
    • the blank Reply (Form 3)
    • the blank Financial Statement (Form 4), if needed
  • the Proof of service copy of your filed documents

See Serve Provincial Court documents by personal service for how to serve a document and complete the Affidavit of Personal Service.

If you can't arrange for personal service, you must get a court order for alternative service (sometimes called substituted service). See Arrange for alternative (substitutional) service, or get help from a lawyer, such as family duty counsel.

Wait for the Reply

The other person has 30 days after being served with the documents to file their Reply (Form 3) and Financial Statement (Form 4).

You can check at the court registry to find out if the Reply has arrived. The registry might not send the Reply to you for up to three weeks after it's filed.

In the Reply, the other person can:

  • say what parts of your application they agree to,
  • say what parts they don't agree to, and
  • ask the court to make different orders by completing the Counterclaim part of the Reply form.

Your next step depends on whether the other person files a Reply (Form 3) or makes a new application in response to yours.

If the other person files a Reply (Form 3), the Family Court clerk will send you these documents within 21 days of receiving them from the other person:

  • a copy of their Reply,
  • a copy of their Financial Statement (Form 4), if they file one, and
  • a Notice of Hearing telling you when you have to appear in court.

This court date is called the first appearance date.

If the other person doesn't file a Reply (Form 3) within 30 days of receiving your application, you must file an Affidavit of Personal Service (Form 5) with the court to proceed. (See Step 4 and Serve Provincial Court documents by personal service for where to find and how to complete the Affidavit of Personal Service.)

  • If you had a professional process server serve the documents, this person should provide you with the Affidavit.
  • If you had a friend serve the documents, your friend must take the completed Affidavit of Personal Service (Form 5) with the attached copy of all documents to a lawyer, a notary public, a government agent, or a clerk at the court registry to swear or affirm that the documents have been served.
You don't need to provide a blank Reply (Form 3) and Financial Statement (Form 4) along with the Affidavit of Personal Service (Form 5). If your friend serves the documents, write a new paragraph on the Affidavit of Personal Service stating that the blank forms were served on the other person: "In addition to serving the documents attached as exhibits to this Affidavit, I also served the other person with copies of a blank Reply (Form 3) and Financial Statement (Form 4)."

File the sworn or affirmed Affidavit of Personal Service (Form 5) at the Family Court registry. Check with the Family Court clerk if you'll be sent a Notice of Hearing or if you have to apply for a court date, and how to apply. (The procedure might differ between court locations. Family duty counsel can help you.)

If the other person has filled out the Counterclaims section of the Reply (Form 3), this means they're making a request for the court to make an order that they want.

Read the counterclaim carefully. You must complete and file your own Reply (Form 3) to the counterclaim within 30 days of the date that you receive this document. You must file the original and the same number of copies at the same Family Court registry.

It's a good idea to get legal advice before responding to a counterclaim.

Get a first appearance date

You'll need

  • Documents that prove you've fulfilled the requirements of your registry, as outlined below, or
  • A court order excusing you from these requirements to get a court date.

As mentioned in Step 3, you might have to meet with a family justice counsellor or take a Parenting After Separation class before you can get your first appearance date, depending on where you live.

If you filed in one of the communities listed here and you don't fulfill these requirements, you'll need a court order excusing you from these requirements to get a court date.

    Rule 21 registries

    • Abbotsford
    • Campbell River
    • Chilliwack
    • Courtenay
    • Kamloops
    • Kelowna
    • Nanaimo
    • New Westminster
    • North Vancouver
    • Penticton
    • Port Coquitlam
    • Prince George
    • Richmond
    • Surrey
    • Vancouver (Robson Square)
    • Vernon
    • Victoria

    Rule 5 registries

    • Kelowna
    • Nanaimo
    • Surrey
    • Vancouver (Robson Square)
    1. You must take a Parenting After Separation class.
    2. You must file at the registry:
    3. The Family Court clerk will send out a first appearance date, even if the other person hasn't filed a Reply (Form 3).
    If you don't take a Parenting After Separation class, you need a court order excusing you from this requirement to get a court date. If you don't file the certificate or have a court order, you won't get a court date.
    1. You must attend a Parenting After Separation class and meet with a family justice counsellor before you can have a court hearing.
    2. You must file at the registry:
    3. The Family Court clerk will send out a first appearance date, even if the other person hasn't filed a Reply (Form 3).
    If you don't meet with a family justice counsellor and attend a Parenting After Separation class, you need a court order excusing you from these requirements to get a court date. If you don't file the certificate and confirmation or have a court order, you won't get a court date.

    The court clerk will automatically mail you a Notice of Hearing that contains the first appearance date after the other person files their Reply (Form 3). You don't need to do anything further.

    Attend the first appearance

    The judge uses the first appearance to sort out your case and make sure that:

    • you've provided each other with all the right information, and
    • you understand what issues you agree about and what you don't.

    The judge will have a long list of cases to hear. They won't have much time to spend on any one case. This means you won't have a chance to tell them much about your case. You won't usually have a chance to get the orders you asked for in your application at this time.

    The judge will tell you what to do next. See Rule 6 of the Family Court Rules for more information about this.

    The judge might:

    • Make an interim order (for example, for support), particularly if you and the other person agree. This order is temporary, until the family case conference or hearing date.
    • Order a family case conference. A family case conference is a one-hour meeting with a judge and the other person, where you'll try to settle some of the issues around parenting. Usually the judge will order a family case conference before setting a hearing date.

    See Family Case Conferences in Provincial Court for more information.

    If the other person doesn't show up

    The judge can make orders if the other person doesn't appear. But they might be reluctant to make an order when the other person isn't in court. The judge can:

    • issue a summons to require the other person to appear, or
    • require that notice of the next hearing be sent to the other person.

    The judge might order you and the other person to attend a family case conference before any hearing. A family case conference is a private, informal meeting with a judge who helps you try to settle some or all of your issues.

    If a family case conference is ordered, both people involved in the case must attend. If one person doesn't attend, the family case conference judge can make orders in that person's absence.

    See our Checklist for a Family Case Conference for tips on how to prepare for a family case conference.

    Although attending a family case conference isn't like going to trial, remember that you're still in court and the person conducting the case conference is a judge.

    • Dress appropriately.
    • Address the judge as "Your Honour."
    • Be as calm as possible.
    • Be prepared to answer questions.
    • Act politely in the presence of your former partner.

    What happens at a family case conference?

    • Both of you must appear at a family case conference, with or without lawyers.
    • The conference is usually held in a conference room, with a judge sitting at a table with you both.
    • The judge can ask you direct questions and will try to find out information that might help resolve conflicts or reduce the amount of time needed for a trial to have conflicts resolved by a judge’s decision.
    • The judge can act as a mediator, so this is a great opportunity to have a judge help you settle your issues without going to trial.
    • The proceedings are confidential. If evidence is required to decide on an issue, a hearing must be set. The family case conference isn't the place for making decisions about substantial issues if you don't agree.

    The judge can make orders, including:

    • sending you to a family dispute resolution professional, such as a mediator, family justice counsellor, or parenting coordinator, or
    • referring your child to counselling.

    The judge can make these orders with or without your agreement, and you might have to pay for them. For a full list of the things a judge can do at a family case conference, see Family Case Conferences in Provincial Court.

    What happens if the discussion breaks down?

    Sometimes, no meaningful discussions happen at the family case conference because one person is unable or unwilling to discuss the issues or to compromise.

    If it becomes clear that nothing will be settled at a family case conference, the judge might try instead to determine what matters need to be cleared up before the case can proceed to a trial.

    The trial preparation conference (also called a pre-trial conference) is a meeting with a judge to make sure:

    • both of you will be ready for trial, and
    • the time you've estimated for the trial is right.

    This conference is usually held about six weeks before the trial date.

    What happens at a trial preparation conference?

    • The procedure is like your first appearance.
    • Your matter will usually be on a list with many other matters in court. You'll probably only be in front of a judge for 5 to 15 minutes.
    • The judge might make orders about things such as:
      • exchanging witness lists
      • exchanging summaries of what each witness will say
      • exchanging other documents either of you plan to use at trial

    What happens if you're not ready for trial?

    The judge will adjourn the trial date.

    See Rule 8 of the Family Court Rules to find out what you can ask the judge to do at a trial preparation conference.

    Get the order

    At the end of the trial, the judge either:

    • gives a decision right away, or
    • says they'll decide later.

    If the judge decides right away

    The registry clerk will prepare the order if neither you nor the other person has a lawyer. This is required by the Provincial (Family) Court Rules.

    The order is effective as soon as the judge makes it, unless they specify a different date.

    If the judge doesn't make a decision that day

    If the judge says they'll decide later:

    • the clerk will give you a date to come back to court and hear the decision, or
    • the registry will contact you later to give you a date to come and hear the decision.

    Sometimes the judge makes a written decision that's mailed to the people involved in a case. Written decisions can be 20 or more pages long. Usually the judge will say at the end what orders are being made.

    The registry clerk will prepare the order if neither you nor the other person has a lawyer. This is required by the Provincial (Family) Court Rules.

    The order is effective as soon as the judge makes it, unless they specify a different date.

    When you receive a signed copy of the order from the court, make a photocopy of it.

    • If the order involves support and the original support order was registered with the Family Maintenance Enforcement Program (FMEP), and support has now been changed, send a photocopy of the new order to FMEP.
    • If the original support order was not registered with FMEP, you might wish to register your new support order with the program now.
    You must include a certified copy of your order with your enrollment package to speed up the enforcement process. Ask at the Family Court registry for a certified copy. There might be a fee for this. Call ahead to find out.

    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 get an interim family order in Provincial Court. Thank you for using our step-by-step guide.