How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?

From Clicklaw Wikibooks

When to make an applicationA request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

In a genuine emergency, you can make an application any time after a 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." has been filed, with no notice or very little notice given to the other side.

In most other cases, you will have to wait until a judicial case conference (JCC) has been heard, although Rule 7-1 has a list of exceptions to this general rule.

Once there a JCC has been held, however, applications can be brought at any time.

How to start the application process

The first court forms you'll need are:

  1. 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." (Form F31), and
  2. an Affidavit (Form F30).

The forms are available online. See the Supreme Court Forms section.

The Notice of Application tells the court and the other side:

  • when you want the application heard,
  • the orders that you want the court to make,
  • the basic facts supporting your application,
  • a summary of your 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. in support of your application,
  • the rules, acts or regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no right to a say in how or what regulations are imposed by government. See "act." that you say allow the court to make the orders you're asking for, and
  • the affidavits you'll be relying on when you argue the application.

The affidavit explains who you are, the orders you want the court to make, and why you want the court to make those orders. Your affidavit contains the 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." you will be relying on in support of your application.

When you're ready to go, you must file your Notice of Application and affidavit in court and serve a copy of the filed documents on the other side, the application respondentA party against whom an interim application has been brought. See also "applicant" and "interim application.", by 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.". Ordinary service is accomplished by mailing the documents to the other side'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 faxing them to a fax number for serviceIn law, to formally deliver documents to a person in a manner that complies with the applicable rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person) or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service.", or by emailing them to an email address for service.

You must serve your materials 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 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." date.

The application respondent's 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."

In most cases, the application respondent will have five business days to reply to your application by filing 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." in Form F32 and any affidavits that the application respondent intends to use. An Application Response tells the court and the applicantA party who brings an application to the court for a specific order or remedy. 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.":

  • the orders that the application respondent agrees to,
  • the orders that the application respondent intends to oppose,
  • the orders that the application respondent might agree to if certain conditions are met,
  • the basic facts against the application,
  • a summary of the application respondent's argument against the application, and
  • the affidavits the application respondent will be relying on when the application is argued.

Although Rule 10-6, the rule that explains how interim applications are brought, says that someone who doesn't file an Application Response isn't entitled to notice of when the application will be heard, do not expect that the court will simply let your application go ahead in default of an Application Response. The court will want to give the other side every chance to defend your application.

Your reply to the application respondent's reply

If you wish to reply to something the application respondent has said in their 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.", you can make a new affidavit of your own. You must deliver this affidavit to the application respondent by 4:00pm on the business day that is one full business day before the hearing.

Application records

You must prepare an Application Record for the hearing of your application. An Application Record is a three-ring binder that contains all of the application materials, with an index and separated by tabs. The Application Record is for the benefit of the judgeA person appointed by the federal or provincial government 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, subject to appeal. 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." hearing your application, so prepare it as neatly and carefully as you can; the judge will appreciate the effort.

Application Records will usually contain the following documents in the following order:

  1. an index,
  2. your Notice of Application,
  3. the Application Response,
  4. your affidavits,
  5. the application respondent's affidavits, and
  6. any new affidavit you have prepared in reply to the application respondent's affidavits.

You must file your Application Record by 4:00pm on the business day that is one full business day before the hearing. Make sure you provide a copy of your index to the application respondent at the same time.

The rules

  • Rule 6-2: How to serve documents by ordinary service
  • Rule 7-1: The JCC rules
  • Rule 10-4: The rule about affidavits
  • Rule 10-5: Directions for bringing interim applications
  • Rule 10-6: The usual application procedure

For more information

You can find a more complete discussion of the 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." process and the different timelines and deadlines in the chapter Resolving Family Law Problems in Court within the section Interim Applications in Family Matters.

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