Difference between revisions of "Interim Applications in Family Matters"

*Rule 21: parenting after separation programs

#Rule 5(8) sets out some exceptions to the rule that may allows a party to ask a judge for to be exempted from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where the court proceeding involves orders about the care of children or child support. Rule 21 sets out yet more hoops to jump through, however the Parenting After Separation program is  

STOPPED.

 

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, 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 progam three or four times. Once Rules 5 and 21 have been complied with, however, the parties to an action can follow the standard rules for bringing on an interim application, set out below.

 

Contact information for the Parenting After Separation Program is provided in the chapter Children > Parenting After Separation.

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 is not mandatory that an FCC be held before an interim application can be brought. You need not wait for your FCC before you bring on an interim application.

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard form, Form 16, which comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which 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 dates 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 particular days set aside for hearing interim applications in family law cases.

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 used for responding to Applications to Obtain an Order and Applications to Change an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response.

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) 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 take a seat to one 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. Stand whenever the judge is speaking to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in Affidavit format. Affidavits can be used, but for some reason this is rarely the case. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them.

Once the Applicant's case is done, the Respondent can 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.

A discussion of courtroom protocol is available in the How Do I ? section of this website.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why he or she should have the order sought. The Respondent will be able to reply to this argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply.

Once argument has finished, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may "reserve" judgment until some later time.