Setting Aside Ex Parte Orders in BC Family Law

Author: SiLaw Group Family Lawyers
Published: Jan 26, 2024
Updated: Jan 27, 2024
Read time: 4 min

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Short answer: if an order was made against you without notice, you can apply to have it changed, suspended or set aside — you do not have to live with it until trial. Section 200 of the Family Law Act expressly allows an order made in a party's absence to be varied or set aside under the court rules. The two arguments that most often succeed are that you were not guilty of wilful delay or default in failing to attend, and that the other party did not make full and frank disclosure when they applied. Move quickly: delay weakens both arguments.

Below is how those tests work and what the court expects to see.

Overview

Ex parte and without notice orders are made without one party present, and they can substantially affect a family law case. Understanding how to respond to one is the difference between a temporary setback and a lasting problem.

Ex Parte and Without Notice Orders

An ex parte order is "a court order made in the absence of one party, typically the respondent, without their knowledge or presence during the court hearing." Such orders typically involve freezing bank accounts, maintaining the family home, issuing protection orders, or granting exclusive home possession.

Without notice orders are granted without allowing the other party to be heard or present their defense. These are typically sought when there's concern about evidence destruction or asset dissipation requiring urgent court action.

Challenges Faced by Respondents

Respondents often struggle when facing these orders, as they significantly impact legal rights, finances, and personal circumstances despite limited opportunity to defend themselves.

The legal system provides mechanisms to set aside these orders when certain conditions are satisfied.

Legal Framework for Setting Aside Orders

Rule 10-3(2) of the Supreme Court Family Rules:
This allows courts to proceed without a party's presence if deemed appropriate, with required evidence of service.

Reconsideration of Order:
Orders made in a party's absence can only be reconsidered if "the court is satisfied that the party failing to attend was not guilty of willful delay or default."

Section 200 of the Family Law Act:
Where the Act or the applicable court rules permit it, a court may hear an application and make an order in a party's absence. An order made in a party's absence may then be changed, suspended or set aside in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, as applicable.

Full and Frank Disclosure:
Failure to provide complete disclosure in ex parte applications can result in orders being overturned. Courts expect all material facts presented, and non-disclosure results in reversals.

Relevant Case Law

Money in a Minute Auto Loans Ltd. v. Price, 2001 BCSC 864 (CanLII):
McKinnon J. emphasized that "full and frank disclosure in ex parte applications" is critical; failure results in orders being set aside regardless of merits. The case also noted when urgency claims were deemed "disingenuous at best," with special costs awarded.

Kapoor v. Makkar, 2020 BCCA 223:
The Court of Appeal described without notice orders as "an extraordinary, powerful, interlocutory remedy" with potential to escalate disputes.

Section 91 of the Family Law Act:
Section 91(4) grants the Supreme Court authority to "change, suspend, or terminate an order" regarding property restraint.

Kepis & Pobe Financial Group Inc. v Timis Corporation, 2018 BCCA 420:
The court emphasized considering whether transactions occurred in the ordinary course of business, as such transactions aren't typically evidence of asset dissipation.

Miranda v. Miranda, 1996 CanLII 1631 (BC CA):
The Court of Appeal allowed reconsideration of three ex parte orders in divorce proceedings, highlighting discretion to intervene while balancing finality with fairness.

Conclusion

Ex parte and without notice orders carry significant consequences in family law. Respondents have legal mechanisms to challenge these orders. Prompt legal consultation is essential when facing such orders.

SiLaw Group is dedicated to protecting client rights. Contact them at (778) 381-9977 in Surrey, British Columbia or book a free consultation.

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