At SiLaw Group Family Lawyers in Surrey, BC, we believe in empowering our clients and the public with knowledge about their legal rights and options. In this blog post, we will discuss an essential aspect of family law concerning setting aside ex parte and without notice court orders. These orders are often made in the absence of one party, and they can significantly impact the outcome of family law cases. We aim to simplify these legal concepts so that anyone can understand them.
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. These orders are typically obtained when there is an urgency, and the court needs to act quickly to protect the rights or interests of one party. Usually these orders include freezing bank accounts, an order to maintain the family home, a protection order, or even an order for exclusive possession of the family home.
Without Notice Orders, on the other hand, are orders granted without providing the other party (the respondent) an opportunity to be heard or present their side of the case. These orders are usually obtained when there is a fear of evidence being destroyed, assets being dissipated, or any other situation requiring immediate court intervention.
Challenges Faced by Respondents:
Respondents often find themselves in a difficult situation when faced with ex parte or without notice orders. These orders can have a significant impact on their legal rights, finances, and personal life, yet they may not have had the chance to present their case or defend themselves properly.
Fortunately, the legal system recognizes the need to protect the rights of respondents and provides mechanisms to set aside these orders if certain conditions are met.
Rule 10-3(2) of the Supreme Court Family Rules:
This rule allows the court to proceed with a chambers proceeding in the absence of a party if it believes it serves the objective of the Supreme Court Family Rules. The court can also require appropriate evidence of service.
Reconsideration of Order:
An order made in the absence of a party 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:
Section 200 of the Family Law Act provides the court with jurisdiction to set aside an order.
Full and Frank Disclosure:
Failure to provide full and frank disclosure in ex parte applications can lead to orders being set aside. The court expects all material facts to be presented, and non-disclosure can result in orders being overturned.
Relevant Case Law:
Money in a Minute Auto Loans Ltd. v. Price, 2001 BCSC 864 (CanLII):
In this case, McKinnon J. emphasized the importance of full and frank disclosure in ex parte applications. Failure to provide such disclosure can lead to orders being set aside, regardless of the merits of the application. This case underscores the critical role of transparency in legal proceedings.
Similarly, paragraph 17 of the same case highlighted a situation where a claimant's assertion of urgency was deemed "disingenuous at best." The court found that there was no genuine urgency, and counsel failed to provide essential information, leading to special costs being granted.
Kapoor v. Makkar, 2020 BCCA 223:
The Court of Appeal, in this case, described without notice orders as "an extraordinary, powerful, interlocutory remedy" that has the potential to escalate disputes between parties in challenging situations. This serves as a reminder of the significant impact these orders can have.
Section 91 of the Family Law Act:
Section 91 of the Family Law Act addresses orders restraining a spouse from disposing of property. Section 91(4) explicitly states that the Supreme Court has the authority to change, suspend, or terminate an order made under this section. This provision underscores the court's power to intervene when necessary.
Kepis & Pobe Financial Group Inc. v Timis Corporation, 2018 BCCA 420:
In this case, the court emphasized that when a plaintiff presents evidence of a defendant's transactions as evidence of a risk of asset dissipation, it is essential to consider whether these transactions occurred in the ordinary course of business. Transactions within this context are generally not considered evidence of asset dissipation.
Miranda v. Miranda, 1996 CanLII 1631 (BC CA):
The Court of Appeal allowed reconsideration of three ex parte orders made in divorce proceedings, highlighting the court's discretion to intervene in such cases. This decision underscores the balance between the common law's reluctance to make orders in the absence of an affected party and the necessity to achieve finality despite delays.
In family law cases, ex parte and without notice orders can have significant consequences. However, the legal system provides mechanisms for respondents to challenge these orders if they meet certain criteria. It is crucial for respondents to understand their rights and seek legal advice promptly when faced with such orders. At our law firm, we are dedicated to ensuring our client's rights are protected. If you have any questions or need assistance with family law matters, please don't hesitate to reach out to us by calling us in Surrey, British Columbia at 778-381-9977 or by clicking and booking a free consultation here.