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Ex Parte Orders… This has nothing to do with partying with your ex…

Except, perhaps, in the case that you are trying to get an injunction to prevent your ex from talking about your potentially embarrassing behavior – like in the case of Party Av. Party B in which Party A successfully obtained an ex parte order preventing his former partner from disclosing the details of their affair, as follows:

The appellant is a married businessman. The respondent is an unmarried businesswoman. The two engaged in an affair which was ultimately terminated at the instance of the appellant. During the course of the affair, the parties engaged in activities, the details of which the appellant would prefer to keep undisclosed.

After the affair ended, the respondent made public disclosure of many aspects of the parties’ activities. The appellant commenced an action against the respondent alleging breach of confidence and breach of the Privacy Act, R.S.B.C. 1996, c. 373, by the respondent. He sought an ex parte order to restrain the respondent from further disclosure, and on May 9, 2011, his application was heard, in camera, and an order was granted against the respondent by a justice of the Supreme Court (the “First Justice”) including the following terms:

1. This Order orders you, among other things, to cease and desist from publishing or disclosing the Private Information as defined below

2. You are at liberty to apply to this Court to set aside or vary this Order upon giving two (2) clear day’s notice to the Plaintiff’s solicitor of your intention to do so.

3. If you disobey this Order you may be guilty of contempt of Court and may be sent to prison, or fined, or both.

THIS COURT ORDERS that:

4. The Defendant, by herself or by her employee, agents, or otherwise, and any other person with knowledge of the terms of this Order, be and is hereby restrained from disseminating, publishing, or otherwise disclosing any private information about the Plaintiff, his sexual practices, or anything that would connect him to having had a sexual relationship with the Defendant (the “Private Information”), until the trial or other disposition of this proceeding or until further Order of this Honourable Court…

Ex Parte (Latin meaning “from (by or for) one party”) are orders obtained on the application of just one party in a court case, without notification to the other party/parties.

In British Columbia, we have dropped the Latin and now call them “orders without notice” in the rules of court.

Applications without notice should only be brought in extraordinary and emergent circumstances and the party bringing the application must explain to the court why it is not possible to provide notice to the other party. The duration of the order is generally to be made for a period sufficient to give the other party notice of the order and schedule a full hearing.

The party bringing the application without notice must also make full disclosure of all of the relevant and material facts relating to the order they are seeking (both for and against their case). Failing to make such frank disclosure may result in the order being set aside or an order of special costs being awarded against the person obtaining the order (for example in this case). Further, failure to make full and frank disclosure can tarnish your credibility in future proceedings before the court. For example, in one case, the court stated:

This evidence of the father lacks believability in this regard as does his justification for obtaining the second ex parte order.

In the Supreme Court of British Columbia orders without notice can be brought pursuant to Supreme Court Family Rule 12-4(3).

Supreme Court Family Rule 10-9(8) provides that an order without notice can be varied or set aside on the application of the other party to the litigation.

In the Provincial Court of British Columbia an order without notice can be made under Rule 20(3) of the Provincial Court (Family) Rules. There are other rules in the Provincial Court Family Rules that give Judges discretion in extraordinary circumstances: Rule 5(8) allows for Provincial Court Judges to make court orders without following regular Registry procedures and Rule 12(2) provides for a Provincial Court Judge to dispense with service requirements.

In family law cases orders without notice are often made for three purposes: 1) personal protection and protection of children (including preventing children from being relocated without consent); 2) protection of property; and 3) exclusive use of property.

A review of 2013 decisions in British Columbia shows that recent ex parte orders without notice have also been granted for a number of other reasons, for example:

  • spousal support (paragraph 20 – order made in 2008);
  • custody and access (paragraph 3); and
  • access to records (paragraph 14 – order made earlier than 2009).

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