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

You've been served with an Application Respecting Existing Orders or Agreements

If you're served with an Application Respecting Existing Orders or Agreements (Form 2), it means the applicant wants to replace part or all of your existing agreement with a new court order.

Don't ignore the application. It can take some time to fill out the forms and gather all the documents you need. You must respond within 30 days, or an order to raise (or lower) support payments can be made without you being heard or having any input into the decision.

The process of responding to an application is complex. We suggest you read through all of this guide before you begin so that you understand:

• the information you need to collect,
• the documents and forms you need to prepare,
• the time periods you have to work with, and
• what you can expect in court.

Where does this happen?

An application to change an agreement that was made in the Provincial Court of BC must also be made in Provincial Court of BC. The application served on you has a court file number and indicates the registry where it was filed.

You must file any court documents at the same registry where the application was filed. If you have to appear in court, it will be in the courthouse where the application was filed. (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?

If you file a Reply, around four weeks is a typical waiting time for a first appearance in front of a judge. This can vary by the location of the Provincial Court.

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

Get legal help

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:

• the Lawyer Referral Service,
• pro bono (free) clinics,
• family duty counsel, or
• advice lawyers.

You'll need:

• the applicant's Application Respecting Existing Orders or Agreements (Form 2)
• their Financial Statement (Form 4) (if they're required to file one)
• a blank Reply (Form 3)
• a blank Financial Statement (Form 4) (if they're applying for a change to a support order).

If you didn't receive copies of the applicant's completed forms, go to the Family Court registry where the original order was made to get the missing document(s).

Read all the documents in the application carefully so that you're very clear about:

• what the application is about, and
• what the court is being asked to do.

You'll need:

• the completed Financial Statement (Form 4)
• all supporting documents
• photo identification such as a
  • BC identity card,
  • BC Services Card,
  • driver's licence, or
  • passport.

You must swear or affirm that what you have 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.

Take photo identification with you.

You'll need:

• your completed Reply
• your completed Financial Statement, if you completed one
• all the documents that support your Financial Statement

Make four complete sets of your documents.

Keep all the originals (with any attachments) as one set. You give this set to the court (the Court file copy).

Then make the following copies:

• A set for you (the Filing party's copy)
• A set for the applicant (the Receiving party's copy)
• A set for the registry (the Proof of service copy)

If either you or the other person receives income assistance, make one more set of copies for the Ministry of Social Development & Poverty Reduction.

The forms from the registry say you only need three photocopies of everything. This is because the registry forms don't include a copy for the Ministry (since they aren't required in every case).

You'll need:

• all four (or five) copies of your documents

File your documents

Take your documents (originals and copies) to the Family Court registry where the original order was made and give them to the clerk.

The clerk will

• keep the Court file copy and the Proof of Service copy
• send the applicant the Receiving party's copy
• stamp the other sets of copies and returned them to you

Have the documents served

The court rules require the registry clerk to serve a copy of your Reply (Form 3) on the applicant within 21 days of the date that you file it at the registry.

If you have filled out the Counterclaim section of the Reply (Form 3), the applicant will have 30 days to fill out their own Reply (Form 3). You'll get a copy of this document.

If you made a copy of your documents for the Ministry of Social Development & Poverty Reduction, ask the registry staff if they'll forward your documents to the Ministry for you. (You can ask if they'll just fax a copy of the documents to the Ministry for you, but this may not be possible.)

To get your first appearance date, you may have to fulfill a couple of requirements first, depending on where you filed your documents.

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.

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. For more information, see Rule 6 of the Family Court Rules.

The judge may:

• 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. For more information, see Family Case Conferences in Provincial Court.

If you don't file a reply

If you don't file a Reply (Form 3) and don't show up for the first appearance date, the judge has many options for dealing with the situation. The other person could ask the judge to make a final order. If the judge agrees, the case will be over.

But judges may be reluctant to make orders if you're not in court.

The judge may:

• order that a summons be served on you (giving you another chance to respond and file a reply), or
• set a hearing date, either with or without ordering that you'll be given notice.

If you didn't file a Reply (Form 3) but decide to go to court for the first appearance date, the judge will likely give you an opportunity to participate. They may give you more time to file a Reply (Form 3).

To prepare, see our Checklist 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.

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 both 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 may 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 of you 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 may 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 five 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 we're not ready for trial?

The judge will adjourn the trial date.

To find out what you may ask the judge to do at a trial preparation conference, see Rule 8 of the Family Court Rules.

Prepare for the trial

To be properly prepared for your court appearance, you need to:

• know what happens in court, and
• prepare a trial book.

These are described in detail in Preparing to attend a Provincial Court trial.

Attend the trial

For a detailed description of what you can expect at your trial, see What happens at a Provincial Court family law trial?

If your child support case is in Kelowna Provincial Court, see our fact sheet for important information.

At the end of the trial, the judge either:

• gives a decision right away, or
• says that they will decide at a later date.

If the judge decides right away

The registry clerk will prepare the order if neither of the parties has a lawyer. This is required by the Provincial (Family) Court Rules.

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

If the judge doesn't make his or her decision that day

If the judge says they will 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 parties. Written decisions can be 20 or more pages long. They are sometimes difficult for people who aren't lawyers to understand. Usually the judge will state at the end what orders are being made. These statements will form the basis of the actual court order.

The registry clerk will prepare the order if neither of the parties has a lawyer. This is required by the Provincial (Family) Court Rules.

The order is effective as soon as the judge makes it, unless the judge specifies 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 the FMEP.
• If the original support order was not registered with the FMEP, you may wish to register your new support order with the program now.

You must include a certified copy of your order with your enrolment package to speed up the enforcement process. Ask at the Family Court registry for a certified copy. Call ahead to find out if there is a fee for certification.