Urgent Family Court Orders in BC: When You Cannot Wait

Most family court applications in BC move on a timetable built around notice, conferences and early resolution steps. Sometimes that timetable is too slow: a parent is threatening to leave the province with the children, a medical decision cannot wait, or someone is not safe at home.

Both BC family courts have ways to hear urgent matters quickly, and sometimes without telling the other party first. Those routes come with strict conditions, and using them badly can backfire.

There is no single "emergency custody order" in BC

People often search for an emergency custody order, but BC law does not use that label. Under the Family Law Act, a court that has an application in front of it can make an interim order for the relief applied for (s 216). In an urgent case, that interim order might deal with parenting arrangements, stop a child from being moved, or restrict contact. What makes it urgent is not a special form of order but the speed and the notice rules that apply.

Which court you use matters, because the two family courts have different rules and powers. If you are unsure which one fits your case, our guide to Provincial Court and Supreme Court in BC family cases explains the split. This article focuses on the fast tracks within each court.

Short notice and no notice: the difference

There are two levels of urgency, and the rules treat them differently.

• Short notice. The other party is told about the application, but less time is given than the rules normally require. In Supreme Court, you first ask for permission to proceed on short notice, by requisition in Form F32.01, and the court or a registrar can set the hearing date and how the papers are to be served (Supreme Court Family Rules, r 10-9(1) to (5)).
• Without notice. The judge hears only from you. In Supreme Court, the court may make an order without notice in the case of urgency (r 10-9(6)). This is reserved for situations where giving notice would itself cause harm, or there is genuinely no time.

A without-notice order is not the end of the matter. The party who got it must promptly serve the entered order and the supporting documents on everyone affected, and any affected person can apply to change or set the order aside (r 10-9(7) and (8)). Courts also expect a person who applies without notice to be candid about the whole picture, including the facts that do not help them. An order obtained on a one-sided or incomplete story is vulnerable once the other side is heard.

In Supreme Court, an application without notice can be brought before a judicial case conference, and a party can ask to be relieved of the conference requirement where an application is urgent or delay might be dangerous to someone's health or safety (r 7-1(3) and (4)).

Provincial Court: priority parenting matters

The Provincial Court Family Rules set out a list of "priority parenting matters" that can jump the usual queue (r 1). They include, among others:

• consent to medical, dental or other health treatment for a child, where delay will put the child's health at risk;
• a passport, licence or similar document for a child, where delay risks harm, or travel that a guardian is said to be wrongly refusing;
• a planned change in a child's residence with a significant impact on the child's relationship with another guardian, where there is no written agreement or order about parenting;
• preventing the removal of a child, and wrongful removal of a child, under the Family Law Act, and Hague Convention return applications.

In registries that require early resolution steps first, an application about a priority parenting matter can be made before those steps are completed (rr 12, 14 and 75). Our article on early resolution in BC family court explains what those steps normally involve.

A priority parenting application is usually served at least 7 days before the hearing, or on a shorter period if the court orders it (r 77). You can also ask the court to waive or modify the requirement to serve the other party, using Form 11 (r 78). A judge who decides notice should be given can set the hearing date, the amount of notice and how it is given.

When the risk is removal of a child

If you fear a child is about to be taken somewhere and not brought back, the Family Law Act lets the court order that a person not remove a child from a specified area (s 64(1)). If the court is satisfied that a person proposes to remove a child from BC and is unlikely to return the child, it can also order that person to give security, surrender passports and travel records, or transfer property to a trustee (s 64(2)). Timing is everything here: these orders are far easier to obtain before a child leaves than to enforce after.

When safety is the issue: protection orders

Where family violence is likely and a family member is at risk, a protection order under Part 9 of the Family Law Act is the usual tool, and an application can be made without notice (ss 183 and 186). In Provincial Court, a without-notice protection order application uses Form 12 and must include a statement of why it is being made without notice (Provincial Court Family Rules, r 67). Protection orders also go ahead of early resolution requirements (rr 12 and 14). For more on recognising patterns of control, see our article on coercive control in BC family law.

Common mistakes in urgent applications

• Calling something urgent that is not. A court that sees an ordinary dispute dressed up as an emergency may refuse to hear it early, and your credibility suffers.
• Leaving out unhelpful facts. On a without-notice application, the judge relies on you for the whole story. Omissions can lead to the order being set aside.
• Slow service. Rules require prompt service of an order made without notice. Delay undermines the order.
• Wrong court for the relief. Apart from a companion animal, the Provincial Court cannot divide family property (Family Law Act s 193), so an urgent property issue usually belongs in Supreme Court.
• Treating the interim order as final. Interim orders are temporary. Changing one later generally requires a change in circumstances or substantial new evidence (s 216(3)).

Facing a family emergency? Talk to us before you file

Our family lawyers can assess whether your situation calls for a without-notice, short-notice or priority application, prepare the evidence, and represent you at the hearing and any return date.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.