Difference between revisions of "Interim Applications in Family Matters"

Once an action has started, it's usually necessary to get one or more short term orders about important issues like where the children will mostly live or whether spousal support ought to be paid. Issues like these can't wait until trial 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 application" in court.

This chapter will provide an introduction to interim applications, discuss the process for making and defending interim applications in the Supreme Court and in the Provincial (Family) Court, and review some of the basic facts which must be proved for a variety of common interim applications.

Interim applications are applications for temporary, short term orders made ahead of trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.

<blockquote>Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>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] case.</blockquote>

Interim applications are particularly common in family law actions, 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:

*Should the family assets be frozen?

*Is a no-contact order between the spouses necessary?

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

#not go to the home of a party;

#not communicate with a party or with the children;

#not harass a party or the children;

#not remove the children from a specific area; or,

#not dispose of family assets or use those assets as collateral for a loan.

Other types of interim order deal with procedural matters that have to do with the conduct of the litigation, rather than with the relationship between the parties and their children. They can be useful to:

Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the family assets. 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 trial.

#the person making the application (the Applicant) prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application (the Respondent or the Application Respondent);

Interim applications are only brought after an action has been 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 custody, guardianship and access to the children, to set out interim spousal or child support, or to freeze the family assets, for example.

*Part 10: application process and procedure

*Rule 10-3: chambers proceedings

 

 

Sample court forms and blank court forms for download are available in the Downloads segment below.

 

To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Justice Education Society about interim applications featuring a great series of instructional videos.

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. Applications can be brought earlier than this — sometimes on the same day that the an action 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.

#when the order will be made by the consent of both parties; or,

#when the application is being made without notice being given to the other side (sometimes called an "ex parte application").

Once a JCC has been held, interim applications can be made at any time, without the need for a further JCC.

JCCs are discussed in more detail in the chapter The Legal System > Starting an Action.

To start an interim application, you must prepare a Notice of Application and your Affidavit in support of your application. Unless your application is being brought without notice to the other party, the Application Respondent, you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2.

The Notice of Application and supporting Affidavits must be served on the Application Respondent at least eight business 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 ex parte. The timelines for interim applications are discussed below in more detail.

#the orders and declarations the Applicant is asking for (also called the "relief sought");

#the Affidavits or other evidence on which the Applicant relies on in support of the relief sought;

#an estimate of the time the Applicant thinks it will take for the application to be heard; and,

The form which must be used is Form F31, set out in Appendix A of the Supreme Court Family Rules. The cost to file an application is $80.00.

An Affidavit is a statement of fact given under oath or affirmation. The Affidavits filed with the Notice of Application should describe facts which relate to the relief sought in the application. The Affidavits filed in support of the application may be brand new or they may have been prepared previously for another application. The form which must be used is Form F30, set out in Appendix A of the Supreme Court Family Rules.

===Defending an Application===

To defend an interim application, you must prepare an Application Response and your Affidavit in support of your position. You must serve these documents on the Applicant by ordinary service, usually by delivering them to the Applicant's current address for service, which will usually be set out in the Claimant's Notice of Family Claim or the Respondent's Response to Family Claim.

The Application Response and supporting Affidavits 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.

An Application Response contains:

#a list of the orders sought by the Applicant which the Application Respondent agrees to;

#a list of the orders that the Application Respondent opposes;

#a list of the orders to which the Application Respondent neither opposes nor consents (this is called "taking no position" on an order);

#a statement of the facts supporting the Application Respondent's position;

#a statement of the legal grounds on which any opposed orders are opposed;

#a list of the Affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and,

#an estimate of the time the Applicant Respondent thinks it will take for the application to be heard.

The form which must be used is Form F32, set out in Appendix A of the Supreme Court Family Rules. There is no fee to file an Application Response.

The Respondent can, at any time after being delivered with a Notice of Application, chose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Application. This is called a "cross-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.

An Affidavit is a statement of fact given under oath or affirmation. The Affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting Affidavits may be brand new or may consist of Affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in Appendix A of the Supreme Court Family Rules.

The process for drafting Affidavits and the rules about the content of Affidavits are discussed in the How do I ? section of this website.

===Responding to the Defence===

The Applicant may prepare an Affidavit responding to the Application Respondent's Affidavit. This new Affidavit should be limited to responding to new issues raised 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 Affidavit.

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 use a new Affidavit.

Time estimates are very important in 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 registry, 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 on the day of hearing than later. There could be two applications set be heard in chambers on a particular day or there could be twenty. The chambers 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 won't be heard until much later in the day.

The Applicant must prepare the Application Record for the application. When both parties have an application scheduled to be heard on the same day, the parties 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 to the Record on the Application Respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

The rules about filing Application Records changed on 1 November 2010. Under the new rules, you are allowed to file your Application Record early if you want, but no sooner than 9:00am three business days before the hearing date. As well, if you file your Record after the deadline of 4:00pm on the day that is one business day before the hearing date, the registry 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 Record and get to the registry early.

The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, with tabs, in the following order:

#an index to the Application Record;

A sample cover page is available in the Downloads segment below.

The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day walks up to the front of the courtroom and signs 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 inside the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order.) 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 calls each application by their 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 walk up to the front of the court and identify themselves to the judge. The Applicant will speak first and present his or her case. The Application Respondent will then present his or her side of the case, following which the Applicant will have a chance to briefly answer the Application Respondent's 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.

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

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."

It is the job of the Applicant to turn whatever the judge or master has decided into a written order. Orders are very particular as to form and wording, so be careful and be accurate! Usually, both the Applicant and the Application Respondent review and sign the order the Applicant has drafted. Once that is done, the Applicant gives the draft order to the Court Registry for approval and entry into the court's book of orders.

The registry staff enter the draft order by checking it 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 is signed and stamped by the registry and entered into a book containing all of the various orders of the court.

Note that while 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, regardless of whether it takes a day or a month to enter the order.

The rules about the timelines for chambers applications changed on 29 July 2010. Time is now counted only in "business days," defined as days on which the court is open for business. This will exclude weekends and statutory holidays like Victoria Day, Canada Day, Christmas and my birthday. This segment summarizes the new rules.

#for ordinary interim applications, within eight business days of the date picked for the hearing

#for summary trial applications, within twelve business days of the hearing

#for applications to change a final order, within twenty-one business days of the hearing

====Defending an Application====

#for ordinary 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 fourteen business days of being served

====Responding to a Defence====

by 4:00pm on the business day that is one full business day before the hearing date

The Applicant must file the Application Record in court 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