Applying for an Interim Order in a Family Law Case in the Supreme Court (Script 112)

From Clicklaw Wikibooks

This script explains why people may need an interim order in a family law case in the British Columbia Supreme Court, how to apply for an interim order, and what to do before the hearing. The reference to "applicant" in this script apply to a party asking for a court order.

At the end of the script, other information sources with much more detail are listed, including where to get the Supreme Court Rules and Forms.

What is an interim order in a family law case in the Supreme Court?

People involved in a family law case will often need an “interim order” after the case has begun but before it has wrapped up. Interim orders are temporary orders that are only meant to last until another interim order is made, or until the case is resolved with a final order or a settlement. Interim orders can deal with urgent problems that can’t wait, such as stopping someone from disposing of property or stopping the child from being taken out of town, or they can deal with questions about how the family will function until the case is resolved, such as where the child will live, whether support should be paid and if so to whom and in what amount.

Applying for an interim order

Rule 10-6 of the Supreme Court Family Rules describes how to apply for an interim order, called making an “interim application.” One party (the “applicant”) starts the process by preparing a Notice of Application using Form F31, found in Appendix A of the Rules. This form tells the judge the sort of order the applicant is looking for, explains why the judge should make that order, says what materials the applicant will be showing to the judge when making the application, and sets the day when the application will be heard.

The applicant will also prepare at least one affidavit, using Form F30. An affidavit is a written statement of the facts important to the application that is signed under oath before a commissioner for taking oaths, like a lawyer, court clerk or notary public. The affidavit gives the judge the information he or she will need to make a decision about the application.

Unless the application is made giving without notice to the other party (the “application respondent”) or the application is agreed to, both the Notice of Application and affidavit must be sent to the application respondent. Rule 6-2 says how these documents are sent to the other side, a process called “ordinary service.” Most of the time, ordinary service is accomplished by sending these materials by mail to the application respondent’s address for service, by fax to the application respondent’s fax number for service or by email to the application respondent’s email address for service.

Picking the hearing date

The applicant must set the date when the application will be heard in the Notice of Application. Except for urgent applications, the very soonest an application can be heard is eight business days (business days are days then court is open for business, and don’t include weekends and holidays) from the date the application materials are sent to the application respondent. The applicant gets to pick the day of the hearing unless the hearing will take two hours or longer, in which case the applicant must schedule the hearing date with the court registry staff. Even if the application will take less than two hours, the applicant should contact the court registry to find out whether the day she or he has picked is a day when interim applications in family law matters are heard. Some court registries only have family law chambers on certain days.

Responding to the application

The application respondent has five business days after the day of ordinary service to file his or her Application Response and supporting affidavits in court and send them, by ordinary service, to the applicant. The Application Response says which of the orders sought in the application are agreed to and which are opposed, and why the court shouldn’t make the orders that are opposed.

Replying to the application respondent’s response

The applicant is allowed to prepare one more affidavit to address any important points raised in the application respondent’s materials. This affidavit must be filed in court and sent to the application respondent by ordinary service before 4:00 p.m. one business day before the date set for the hearing of the application.

The Application Record

The applicant must prepare an Application Record for the hearing. An Application Record is a binder containing the following documents, separated by tabbed pages:

  1. the Notice of Application,
  2. the Application Response,
  3. all of the affidavits that the applicant will show to the judge, listed in his or her Application plus any new affidavits prepared in response to the application respondent’s materials, and
  4. all of the affidavits that the application respondent will show to the judge, listed in his or her Application Response.

(Any kind of bound format will do, but it’s usually easiest to put these documents into an ordinary three-ring binder.) The Application Record must begin with an index that says what document is at each tab.

The applicant must file the Application Record, along with an extra copy of the Notice of Application, in court and send a copy of the index on the application respondent by ordinary service before 4:00 p.m. one business day before the date set for the hearing of the application. (This is the same deadline as the deadline for the applicant to file any new affidavits prepared in response to the application respondent’s materials.)

The applicant and the application respondent should prepare exact copies of the Application Record for themselves. The application respondent will make his or her copy using the index that was sent by the applicant.

The hearing

Judges and Masters hear interim applications in chambers, a public courtroom where all of the interim applications set for that day are heard. (Rule 10-6 says how interim applications are filed in court and schedule for a hearing in chambers. Rule 10-4 talks about how affidavits are prepared, and Rule 10-3 talks about the hearing process.)

On the day of the hearing, the applicant and the application respondent should go to the chambers courtroom at 9:45 a.m. and check in with the court clerk to say they are present in court. When the court clerk calls the name of the case, the applicant and application respondent (or their lawyers) should approach the table before the judge and the clerk and introduce themselves to the judge or master.

The applicant will start the hearing by describing the orders that he or she is asking for, listed in the Notice of Application, and by talking about the facts stated in the affidavits that explain why the judge should make those orders.

When the applicant has finished, the application respondent will summarize his or her Application Response, the facts stated in the affidavits that explain why the court shouldn’t do as the applicant asks.

After the application respondent finishes, the applicant will be allowed to make a short reply to answer any new points raised by the application respondent.

It is important to know that the judge will only consider the facts that are stated in the affidavits. Neither the applicant nor the application respondent will be testifying during the hearing, and neither the applicant nor the application respondent will be able to ask each other questions. All of the evidence is provided through the affidavits in the Application Record.

The decision

After reviewing the documents and listening to the parties’ arguments, the judge or master will make an order. The court may make all, some or none of the orders that the applicant is asking for.

The written order

If one of the parties is represented by a lawyer, the lawyer will prepare the written interim order from the judge’s decision and file it in court. If neither party has a lawyer, a court clerk will prepare the written order.

It is important to know that the order is in force from the moment the judge or master gives his or her decision, not from the date the written order is prepared, and that the interim order will remain in force until the court makes another interim order on the same subject or until the family law case is resolved by a trial or a settlement.

Summary

The applicant begins an interim application by filing a Notice of Application and supporting affidavits in court and serving those materials on the application respondent at least eight business days before the date set for the hearing.

If the application respondent wants to object to any part of the application, he or she must file an Application Response and supporting affidavits in court and serve those materials on the applicant at least five business days after the date he or she was served with the applicant’s materials.

By 4:00 p.m. on the business day that is one business day before the hearing date, the applicant must: file any reply affidavits in court and serve them on the application respondent; prepare the Application Record and file it in court; and, serve a copy of the Application Record index on the application respondent.

The applicant should check in with the court clerk by 9:45 a.m. on the day of the hearing. When the application is called, the judge or master will listen to each party explain why the orders sought by the applicant should or shouldn’t be made. The judge or master will make a decision that will be prepared as a written order and filed in court.

The interim order is in force from the moment of the judge or master’s decision and remains in force until another interim order is made or until the family law case is resolved.

More information

Much more information on this complicated topic is available on several websites, including:

  • The Justice Education Society’s “Court Tips for Parents” at www.courttips.ca has instructional videos on presenting a case in chambers.
  • The Vancouver Justice Access Centre's Self-Help and Information Services at www.supremecourtselfhelp.bc.ca. Also, see the Court’s home page with a link to Court Services Online.
  • The Legal Services Society’s Family Law in British Columbia website at www.familylaw.lss.bc.ca —see the self-help guides.
  • The Justice Education Society at www.justiceeducation.ca—click on “Self-Help”, then on “Guidebooks for Representing Yourself in Supreme court”.
  • The wikibook JP Boyd on Family Law, from Courthouse Libraries BC, has a helpful description of the interim application process and links to the applicable rules and court forms.


[updated February 2017]

The above was last reviewed for accuracy by Janette Kovacs.


© Copyright 2017, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.


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