Set aside all or part of an agreement in Supreme Court

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'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 don't want a JCC, or you had one but didn't come to an agreement, continue to the next step to get a Chambers hearing.

You'll need

• A Notice of Application (Form F31)
• An Affidavit (Form F30) to support the application
• A Financial Statement (Form F8), if necessary

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 Prepare a Notice of Application and Write a Supreme Court order to help you write out the section on orders. 

For help writing the Affidavit, see:

• Checklist of information to include in an affidavit or bring to court,
• How do you write an affidavit? and
• Write an affidavit.

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

• Common questions about the Supreme Court PDF forms.

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.

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
• Someone to serve the documents on the other person

Make copies

Make three copies of all your documents:

• 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)
• The registry will keep the original when you file

The other copies are needed when you file the documents with the court registry (Step 4) 

Serve the documents on the other person

Serve the unfiled Notice of Application and Affidavit on the respondent. 

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.

Wait for the other party's response

The other party has 14 days after they receive your Notice of Application and Affidavit to respond. Start counting day 1 the day after they were personally served. They respond by serving you with their Application Response (Form F32) and Affidavit. 

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
• set a hearing date by filing a Notice of Hearing of Application and both of you show up in court on the date of 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 serve you with their Application Response and Affidavit within 14 days of being served with your documents.

File your court documents

You can file your court documents (set out below) once one of these happens:

• The other party serves you with their Application Response and Affidavit, or, 
• 14 days have passed since they received your documents, and they haven't responded.

You'll need: 

• Your Notice of Application (Form F31) (3 copies)
• Your Affidavit (Form F30) (3 copies) 
• Any other unfiled supporting affidavits you served on the other person and you intend to rely on at the hearing
• A Notice of Hearing of Application (Form F31.1) (3 copies)
• An Affidavit of Personal Service (Form F15), completed by the person who served the other party (2 copies)
• $80 to file a Notice of Application. 

Take all the copies of your documents, plus the filing fee, to the registry for filing. 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 stamped and returned to you. 

See How to fill out an Affidavit of Personal Service

Fill out Notice of Hearing of Application (Form F31.1) 

Service - You will set out when you served the other person and when or if they responded. 

Date of hearing - You will check the option that applies, that is, whether you and the other person have agreed on the date of the hearing or whether you will serve this Form F31.1 notifying the other person of the date of the hearing at least 7 days beforehand. Or whether the application is by consent (agreed), unopposed (the other party will not argue against it) or without notice to the other party. Without notice applications are only allowed in specific circumstances or cases of urgency.

Duration of hearing - this part asks whether the parties agree to the duration of the hearing. Remember if the hearing will last over 2 hours, you must have Supreme Court Scheduling set the date and special time lines apply for serving Form 31.1.

Jurisdiction - this part asks if your issue can be heard by an associate judge. If you are not sure, ask the Registry. 

Orders sought - if you are seeking the same orders as set out in your Notice of Application, set them out here. If you and the other party have agreed on any orders in the meantime, you can set out that those ones are “by consent”. 

Serve the Notice of Hearing of Application (Form F31.1)

Once you have filed the Notice of Hearing, serve it on the other person. This will let them know the date of the hearing. 

Hearings of 2 hours or less:
You must file and serve this form at least 7 days before the hearing. Make sure you give yourself enough time when you schedule the hearing. 

Hearings over 2 hours: 

You must obtain a hearing date from the Supreme Court Scheduling. You cannot choose it yourself. After you get the date, you must file and serve the filed Notice of Hearing of Application:

•  within 7 days of getting the date, and

• at least 14 days before the hearing. 

If you have questions about the time period ask the registry. 

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 title page
• An Application Record index
• 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 an Application Record 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 reply 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.

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.

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'll need

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

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:

• Tips for writing Supreme Court orders, and
• Write a Supreme Court order.

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.

You'll need

• The approved (entered) order
• A copy of the order for the other person
• A copy for BCFMA, 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.