Interim Applications in Family Matters

From Clicklaw Wikibooks

Once a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. ought to be paid. Issues like these can't wait until trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an interim applicationAn application, also called in "interlocutory application," made after the start of a court proceeding but before its conclusion, usually for temporary relief pending the final resolution of the proceeding at trial or by settlement. In family law, interim applications are useful to determine issues like where the children will live, who will pay child support and whether spousal support should be paid on a rough and ready basis. See "application" and "interim order." in court.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.", and reviews some of the basic facts that should be discussed for a variety of common interim applications.

Introduction

Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." is made at trial or following settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer.".

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In M.(D.R.) v. M.(R.B.), 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, the judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. had this to say about interim orders:

"Interim orders are only intended to be short-term, and their purpose is to bridge the gap between the time that a court actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. is started, and when the court can fully consider the issues raised and make a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." on the merits.
"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent."."

The purposes of interim applications

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:

  • Where will the children live most of the time?
  • What time will each parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." have with the children?
  • Should child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. be paid?
  • Should spousal support be paid, and, if so, how much should be paid?
  • Should only one spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." have the right to live in the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."?
  • Should the propertySomething which can be owned. See "chattels" and "real property." be frozen until it is divided by a final order or agreement?
  • Is a protection orderAn order available under the ''Family Law Act'' for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting or stalking a person, restraining someone from going to a person's home, place of employment or school. See "application," "ex parte" and "restraining order." necessary?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:

  • not disposing of property,
  • not racking up debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.,
  • not talking to the children about the issues in the court proceeding, or
  • not going to a particular place.

Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:

  • not communicating with the family member,
  • not going to a place where the family member goes to school or works,
  • not possessing weapons, or
  • not stalking or harassing the family member.

Other types of interim orderAny order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final order. See "application" and "interim application." deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

  • set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
  • force someone to submit to a medical or psychiatric examination,
  • authorize the preparation of a needs of the child assessment or views of the child report, or
  • fix dates for hearings like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." or an order dividing the family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." and family debtA term under the ''Family Law Act'' referring to debt owed by either or both spouses that accumulated during the spouses' relationship and after separation, if used to maintain family property. Both spouses are presumed to be equally liable for family debt.. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or finishes at trial.

Making interim applications

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending a court proceeding and works more or less like this:

  1. The person making the applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.", the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.", prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the application respondentA party against whom an interim application has been brought. See also "applicant" and "interim application." or the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim.".
  2. The application respondent has a certain amount of time to replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut." to the application, and does so by preparing other formal court documents and delivering those to the applicant.
  3. The applicant may prepare a reply to the application respondent's reply.
  4. On the date of the hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence.", the applicant argues why the order sought should be made, the application respondent argues why the order sought shouldn't be made, and the judge or masterA provincially-appointed judicial official with limited jurisdiction usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge," and "jurisdiction." who hears the application makes a decision one way or the other (or, often, a bit of both ways).

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's the authority to decide the issues before it. It is very important to understand how the rules about interim applicaitons work.

The Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilitiesA term under the ''Family Law Act'' which describes the various responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." or parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian." with the children, to arrange for the payment of spousal support or child support on an interim basis, or to freeze the family property, for example.

The main Supreme Court Family Rules about the application process are:

  • Rule 1-1: definitions
  • Rule 5-1: financial disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.
  • Rule 6-2: ordinary serviceSending legal documents to a party at that party's "address for service," usually by mail, fax or email. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service."
  • Rule 7-1: judicial case conferences
  • Part 10: interim applications and chambers procedure
  • Rule 10-2: where applications are heard
  • Rule 10-3: chambers procedure
  • Rule 10-4: affidavits
  • Rule 10-6: normal application process
  • Rule 10-9: urgent applications
  • Rule 15-1: court orders
  • Rule 16-1: costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees."
  • Rule 21-2: time

For a summary of the application process, see How Do I Make an Interim Application in a Family Law Matter in the Supreme Court? in the How Do I? part of this resource. Links to and examples of the court forms used in the process can be found in Supreme Court Forms & Examples.

When to make an application

Generally speaking, interim applications are only brought after the respondent has had a chance to file his or her Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out his or her reply to the claimant's claim and the grounds for his or her reply. See "action," claim," "Notice of Family Claim" and "pleadings." and a judicial case conference has been held. Applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately, as might be the case if a parent is threatening to leave the country with the children or torch the family home.

Rule 7-1(3) of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

  1. when an application is being made for an order restraining either or both parties from disposing of family assets,
  2. when the order will be made with the agreement of both parties, or,
  3. when the application is being made without notice being given to the other side (sometimes called an ex parte application).

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. Once the first JCC has been held, interim applications can usually be made at any time.

This chapter discusses JCCs in more detail in the Case Conferences section.

Making an application

To start an interim application, you must prepare a Notice of ApplicationA legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief." and an affidavit in support of your application. Unless your application is being brought without notice to the other partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant.", the application respondent, you must deliver these documents to the other party's address for serviceThe address at which a party to a court proceeding agrees to accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addresses for service may include postal addresses, fax numbers, and email addresses. by ordinary service under Rule 6-2. You can do this by sending them to the application respondent's current address for service, which will usually be set out in his or her Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief." or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the application respondent at least eight business daysA method of calculating time under which the days for a legal deadline are determined based on when the court is open for business, excluding weekends and holidays. See "calendar days" and "clear days." before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the application respondent. The timelines for interim applications are discussed in more detail below.

The Notice of Application

The Notice of Application describes:

  1. the orders and declarations the applicant is asking for (also called the reliefIn law, an order sought by a party to a court proceeding or application, usually as described in his or her pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings." the applicant is asking for),
  2. the facts supporting the application,
  3. the legal grounds on which the application is made,
  4. the affidavits or other evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." which the applicant relies on in support of the relief sought,
  5. the amount of time the applicant thinks it will take for the application to be heard, and
  6. the date picked by the applicant for the hearing of the application.

The form you must use is Form F31, which you can download in an editable format in Supreme Court Forms & Examples. The cost to file an application is $80.00.

Supporting affidavits

An affidavit is a written summary of relevant facts and information, given under oathIn law, a promise of the truth of a statement secured by one's faith in a god, and the prospect of torment in the afterlife in the event the promise is falsely made. Someone making an affidavit will often give his or her evidence in that affidavit under oath; a witness giving oral evidence will often give his or her evidence in court under oath. See "affidavit," "affirm," "perjury" and "witness." or affirmation.

The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. These affidavits may be brand new or they may have been prepared earlier for a previous application. The form you must use is Form F30, which you can download in an editable format in Supreme Court Forms & Examples.

The process for drafting affidavits and the rules about the content of affidavits are discussed in How Do I Prepare an Affidavit? It's located in the How Do I? part of this resource under Affidavits.

Replying to an application

You must reply to an interim application if you object to any of the orders the applicant is asking for. If you agree with all of the orders sought by the applicant, you don't need to do anything. For a summary of this process, see How Do I Reply to an Interim Application in a Family Law Matter in the Supreme Court? It's located in the How Do I? part of this resource, in the section Interim Applications.

To reply to an interim application, you must prepare a court form called an Application ResponseA legal document required by the Supreme Court Family Rules to reply to a Notice of Application, which sets out the relief agreed to and opposed by the application respondent and the facts in support of that position. See "interim application." and an affidavit in support of your position. These documents must be filed in court and served on the applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in How Do I Personally Serve Someone with Legal Documents? It's located in the How Do I? part of this resource under Starting an Action.

You may, at any time after being delivered with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a cross-application, by Notice of Application. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

The Application Response

The Application Response describes:

  • the orders sought by the applicant which the application respondent agrees to,
  • the orders that the application respondent opposes,
  • the orders to which the application respondent neither opposes nor consents (this is called taking no position on an order),
  • the facts supporting the application respondent's position,
  • the legal grounds on which any opposed orders are opposed,
  • the affidavits or other evidence which the application respondent relies on in opposing the application, and
  • the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in Supreme Court Forms & Examples. There is no fee to file an application response.

Supporting affidavits

An affidavit is a written summary of relevant facts and information, given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application. The form you must use is Form F30, which you can download in an editable format in Supreme Court Forms & Examples.

The process for drafting affidavits and the rules about the content of affidavits are discussed in How Do I Prepare an Affidavit? It's located in the How Do I? part of this resource under Affidavits.

Responding to the Application Response

The applicant may prepare an affidavit responding to the affidavits provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed by the application respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the applicant's first affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.".

The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the application respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the application respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.

A short note about time estimates

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the trial coordinator at the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed., and a hearing date may not be available for several weeks. Applications that will take less than two hours are heard on a day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be 30. The court clerk will generally sort the applications in order of the time estimates, so that a five-minute application will be heard fairly quickly, while a ninety-minute application might not be heard until much later in the day.

The Application Record

The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they must cooperate and prepare a joint Application Record.

The applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the applicant will be asking the court to hear. The applicant must serve a copy of the index of the Record on the application respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." will do, including running a couple of hex bolts through the left-hand margin. The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

  1. the index to the Application Record,
  2. the Notice of Application (Tab 1),
  3. the Response to Application (Tab 2), and
  4. the affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called tab dividers or index dividers by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draftA preliminary version of a document; an order prepared following judgment submitted to the court for its approval; to prepare, or ''draw,'' a legal document. of the order sought. Certain things may not be included in the Application Record, such as affidavits of service, copies of legislationAn act; a statute; a written law made by a government. See "regulations." and copies of cases.

Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

  1. The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents.
  2. The titleIn law, a document demonstrating ownership of a thing. See "ownership." of the document (usually just "Application Record").
  3. The claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent."'s address for deliverySending legal documents to a party at that party's "address for service," usually by mail, fax or email, called "ordinary service" in proceedings before the Supreme Court. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service.", telephone number and fax number.
  4. The respondent's address for delivery, telephone number and fax number.
  5. The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.

The hearing

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the court lists are posted online for that day only on Court Services Online.

The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the How Do I? part of this resource under Courtroom Protocol. You may wish to review How Do I Conduct Myself in Court at an Application?

The applicant will address the judge first, and present his or her case, explaining:

  • what orders the applicant is asking the judge to make,
  • why the judge can make the orders the applicant is asking for, and
  • the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present his or her side of the case and explain:

  • which orders the application respondent agrees to and might agree to on conditions,
  • which orders the application respondent opposes, and
  • the facts that explain why the judge shouldn't make the orders the applicant is asking for.

The applicant will then have a chance to briefly answerA response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply." the application respondent's argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument.. The application respondent may have the opportunity to address the applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the applicant and application respondent questions during their presentations to clarify things.

After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a reserved decision.

After the hearing

It is usually the job of the applicant's lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." to turn whatever the judge or master has decided into a written order. If the applicant doesn't have a lawyer, the lawyer for the application respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will enter the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the official order of the court, the order is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

Timelines

The rules about the timelines for chambers applications can be complicated, and may change depending on whether the application is for an interim order, a final order, or an order changing a final order.

Making an application

The applicant must file and serve the Notice of Application and supporting materials:

  • For interim applications, within eight business days of the date picked for the hearing.
  • For summary trial applications, within 12 business days of the hearing.
  • For applications to change a final order, within 21 business days of the hearing.

Replying to an application

The application respondent must file and serve the Application Response and supporting materials:

  • For interim applications, within five business days of being served with the Notice of Application.
  • For summary trial applications, within eight business days of being served.
  • For applications to change a final order, within 14 business days of being served.

Responding to an application response

The applicant must file and serve any new supporting materials, usually limited to new affidavits:

  • By 4:00pm on the business day that is one full business day before the hearing date.

Application records

The applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the application respondent:

  • By 4:00pm on the business day that is one full business day before the hearing date.

Sample timelines

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6 of the Supreme Court Family Rules; nothing stops you from agreeing to a more generous set of due dates.

Monday Tuesday Wednesday Thursday Friday

Applicant files and serves application materials on the application respondent.
 
First business day after service. Second business day after service. Third business day after service. Fourth business day after service.
Fifth business day after service.
 
Application respondent files and serves reply materials.
Sixth business day after service.
Seventh business day after service.
 
Applicant files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.
 
Eighth business day after service.
 
One business day before the date of the hearing.
DAY OF
HEARING

In this example, the application respondent's materials are due on Monday on the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the application respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the applicant serves the interim application materials and the date of the hearing; all of the steps after the holiday get bumped back by one day.

Monday Tuesday Wednesday Thursday Friday

Applicant files and serves application materials on the application respondent.
 
First business day after service. Second business day after service. Third business day after service. Fourth business day after service.
HOLIDAY. Fifth business day after service.
 
Application respondent files and serves reply materials.
Sixth business day after service.
Seventh business day after service.
 
Applicant files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.
 
Eighth business day after service.
 
One business day before the date of the hearing.

DAY OF
HEARING.

 

A short note about courtesy

The Supreme Court Family Rules allow an applicant to simply set the hearing date without consulting the application respondent. Although this gives the applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the application respondent, you can expect the application respondent to show up on the hearing date and ask the court for a delay your application, called an adjournmentThe suspension of a hearing or trial, usually when the hearing or trial cannot proceed on the date scheduled or because it cannot complete within the time scheduled..

If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or his or her lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on:

  • the date when you'll have the application materials to the application respondent,
  • the date when the application respondent will get his or her reply materials to you, and
  • the date of the hearing.

The Provincial Family Court

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the applicant, must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the respondent, the person against whom the application has been brought. The respondent is not required to file anything in reply to the application.

Most often, applications in the Provincial Court are based on oral evidence, evidence giving by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Althought the exchange of affidavits is not a mandatory part of the process, many judges appreciate the convenience of having the evidence written out in affidavits.

The principle Provincial Court Family Rules that relate to Notices of Motion and the application process are:

  • Rule 1: definitions
  • Rule 5: court procedures for courthouses that are designated as "family justice registries"
  • Rule 12: interim applications
  • Rule 13: affidavits
  • Rule 18: orders
  • Rule 20: general rules about court procedures
  • Rule 21: parenting after separation program

For a summary of the process, see How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?

When an application can be brought

Generally speaking, interim applications are only brought after the respondent has had a chance to file his or her ReplyA legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim," and "Counterclaim." to the applicant's Application to Obtain an OrderA legal document required by the Provincial Court Family Rules to bring a court proceeding, which sets out the relief sought by the applicant against the person named as respondent. See "action," "applicant," "pleadings," "relief," and "respondent.", but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, as might be the case if the respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for the Parenting After Separation program and whether it is also a family justice registry.

Family justice registries

Rule 5 of the Provincial Court Family Rules applies to those registries of the Provincial Court that have been designated as family justice registries. Under this rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

  1. Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court.
  2. Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute.
  3. Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor.
  4. Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the Parenting After Separation program is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

  • Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
  • Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
  • Rules 21(4) and (5) set out some exceptions to the rule if there is a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make., if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
  • Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, most parents, once they have complied with Rules 5 and 21, can follow the standard rules for bringing on interim applications, described below.

Family case conferences

Family case conferences are similar in many ways to the judicial case conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

This chapter discusses both FCCs and JCCs in the Case Conferences section.

Making an application

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that can simply be ticked off to indicate the sort of order that you want the court to make.

The registry will stamp all of the copies and keep the top sheet. You must then serve the respondent with his or her copy at least seven days before the date the application is set to be heard. The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in Provincial Court Forms & Examples. There is no charge to file a Notice of Motion.

Defending an application

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the applicant be served with a response.

For a summary of the process, see How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court? It is located in the How Do I? part of this resource, under Interim Applications.

The hearing

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which says that if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what his or her application is all about.

The applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath or affirmation, rather than in affidavit format. Affidavits can be used, but for some reason this is rarely the case. Most judges would prefer to have an affidavit, and if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit.

Once the applicant's case is done, the respondent may present his or her own case, and call witnesses to give evidence just the way the applicant did. Likewise, the applicant will be able to cross-examine the respondent's witnesses.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply.

Once everyone is done, the judge will give his or her judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." on the application. The judge may give his or her decision right away, or the judge may need to think about things for awhile. This is called a reserved judgment, and the judge will usually give his or her decision in a written form later.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the How Do I? part of this resource under Courtroom Protocol. You may wish to review How Do I Conduct Myself in Court at an Application?

After the hearing

If the parties to the hearing were represented by lawyers, the applicant's lawyer will usually draft an order based on the judge's decision. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

Common interim applications

The following discussion reviews the basic facts that will usually need to be proven for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

Care of children

Important factors

When making the first application about custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." and accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." under the Divorce Act, or about parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time." and contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." under the Family Law Act, important facts will usually include:

  • the children's names, birth dates and ages,
  • where the children go to school and what grade they're in,
  • any important health or educational concerns,
  • the occupation of each parent,
  • each parent's usual work schedule,
  • how the parents shared the parenting of the children while they were together,
  • who was responsible for arranging things like visits to the doctor and dentist,
  • who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done,
  • how the parents have shared the parenting of the children since they separated,
  • the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.", and
  • a description of any actual problems with a parent's capacity to care for the children.

Changing orders and agreements about the care of children

If the application is to change an order about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

  • what is the change in the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."'s needs or circumstances since the original order was made, and
  • how has this change affected the best interests of the children?

Other important facts might include:

  • how the original order has worked out,
  • if the parents followed the terms of the order, and
  • if the order met the children's needs and if not, why not.

If the application is to set aside an agreement about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

  • why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

  • how the agreement has worked out,
  • if the parents followed the terms of the agreement, and
  • if the agreement met the children's needs and if not, why not.

Child support

Important factors

The important facts that go into most applications for child support are:

  • the children's names, birth dates and ages,
  • how the children's time is divided between the parents,
  • whether some or all of the children are stepchildren to the person who is to pay child support,
  • whether some or all of the children are receiving child support from another parent,
  • the nature of each parent's employment, and
  • each parent's income from their employment and any other source.

Basic financial information

Applications about child support typically require that each parent cough up certain documents in order to establish his or her income, in addition to a sworn Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe his or her income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury.". The most common of these documents for people who are employees are:

  • the last three years of personal income tax returns,
  • all notices of assessment or reassessment received in relation to the last three tax years, and
  • a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

  • statements of professional or business income,
  • a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
  • balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

  • corporate financial statements for the three most recent fiscal years,
  • corporate tax returns for the three most recent fiscal years, and
  • a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

Changing child support orders and agreements

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

  1. has there been a change that would cause a different amount of support to be paid under the Child Support Guidelines, usually a change in someone's income,
  2. has there been a change in the needs and circumstances of the child,
  3. whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
  4. whether you have discovered proofEvidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises." that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

  • each party's present income,
  • the child's continuing entitlement to receive child support, and
  • updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

  • what amount of support should be court order, and
  • why should the court make a different order than what was agreed to?

Spousal support

Important factors

When making the first application for spousal support, the important facts will include:

  • the date the parties began to live together and the date they married,
  • the date of separation,
  • the parties' ages, including the proposed recipient's age at the date of separation,
  • each party's present health,
  • any factors limiting a party's ability to obtain employment,
  • the parties' present employment circumstances,
  • the parties' employment history during marriage, including any periods of unemployment,
  • each party's present income and the sources of that income,
  • a description of the each party's living expenses after separation,
  • any career sacrifices made during the relationship,
  • the parties' education and training history, prior to and during the marriage,
  • a description of any education and training taken after separation, especially any education geared to finding employment,
  • the ages and school status of the children at the date of separation, and
  • the arrangements that have been made for the care and control of any children.

Basic financial information

All applications about spousal support typically require that each spouse cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

  • the last three years of personal income tax returns,
  • all notices of assessment or reassessment received in relation to the last three tax years, and
  • a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

  • statements of professional or business income,
  • a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
  • balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

  • corporate financial statements for the three most recent fiscal years,
  • corporate tax returns for the three most recent fiscal years, and
  • a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

Changing spousal support orders or agreements

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

  1. has there been a change in the means or needs of either spouse since the last order was made,
  2. whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
  3. whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

  • each party's present income,
  • each party's income at the time of the most last order,
  • the steps the recipient has taken to become financially self-sufficient,
  • education or training taken by the recipient since the order was made,
  • any employment taken by the recipient since the order or agreement was made,
  • any changes in the employment circumstances of the payor,
  • whether the recipient has remarried or is in a new unmarried spousal relationship, and
  • whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

  • a party failed to disclose relevant income, property or debt,
  • one party took advantage of the other party's vulnerability or ignorance,
  • a party didn't understand the nature of the agreement,
  • the agreement is unconscionable, or
  • a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is significantly unfair and talk about:

  • how long it has been since the agreement was signed,
  • any changes in the needs or circumstances of either party,
  • the parties' intention to have a final deal when the agreement was signed,
  • how important the agreement was to each party in planning their lives and arranging their affairs, and
  • how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

Protection orders and restraining orders

The court can make a variety of orders where someone is in need of protection, depending on what the circumstances are and which order makes the most sense. More information about these orders can be found in the section Family Violence in the chapter Other Family Law Issues.

The court can also make orders designed to protect assets from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section Protecting Property & Debt in the chapter Property & Debt.

Resources and links

Legislation

Resources

Links


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