2,443
edits
Difference between revisions of "Interim Applications in Family Matters"
From Clicklaw Wikibooks
Interim Applications in Family Matters (view source)
Revision as of 04:06, 15 April 2013
, 04:06, 15 April 2013no edit summary
Gayla Reid (talk | contribs) m |
|||
| Line 6: | Line 6: | ||
}} | }} | ||
Once a court proceeding 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 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. | Once a court proceeding 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 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 | 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 Court, and reviews some of the basic facts that should be proved for a variety of common interim applications. | ||
==Introduction== | ==Introduction== | ||
| Line 16: | Line 16: | ||
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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a BC Supreme Court case, the judge had this to say about interim orders: | 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 ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a BC Supreme Court case, the judge had this to say about interim orders: | ||
<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 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> | <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> | ||
| Line 53: | Line 53: | ||
*fix dates for hearings like Trial Management Conferences and Settlement Conferences. | *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 divorce or an order dividing the family property and 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 trial. | Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorce or an order dividing the family property and 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=== | ===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 | 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: | ||
#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''. | #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''. | ||
#The application respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the applicant. | #The application respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the applicant. | ||
#The applicant replies to the application respondent's reply. | #The applicant replies to the application respondent's reply. | ||
#On the date of the hearing, 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 master | #On the date of the hearing, 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 master 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. | 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. | ||
==The Supreme Court== | ==The Supreme Court== | ||
| Line 86: | Line 86: | ||
*Rule 21-2: time | *Rule 21-2: time | ||
Each rule tells you the forms you need to use. | Each rule tells you the forms you need to use. You can find links to sample court forms and blank court forms in [[Sample Supreme Court Forms (Family Law)]]. | ||
===When to make an application=== | ===When to make an application=== | ||
| Line 94: | Line 94: | ||
[http://canlii.ca/t/8mcr Supreme Court Family Rule 7-1(3)] sets out the exceptions to the requirement that a JCC be held before any applications can be brought: | [http://canlii.ca/t/8mcr Supreme Court Family Rule 7-1(3)] sets out the exceptions to the requirement that a JCC be held before any applications can be brought: | ||
#when an application is being made for an order restraining either or both parties from disposing of family assets | #when an application is being made for an order restraining either or both parties from disposing of family assets, | ||
#when the order will be made with the agreement of both parties | #when the order will be made with the agreement of both parties, or, | ||
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application''). | #when the application is being made without notice being given to the other side (sometimes called an ''ex parte application''). | ||
| Line 102: | Line 102: | ||
Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC. | Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC. | ||
JCCs | This chapter discusses JCCs in more detail in the section[[Case Conferences in a Family Law Matter]]. | ||
===Making an application=== | ===Making an application=== | ||
To start an interim application, you must prepare a Notice of Application and an 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 [http://canlii.ca/t/8mcr Supreme Court Family Rule 6-2] | To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, called the ''application respondent'', you must deliver these documents to the other party's address for service by ordinary service under [http://canlii.ca/t/8mcr Supreme Court Family 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 Claim or Response to Family Claim. | ||
The Notice of Application and any 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 without notice to the application respondent. The timelines for interim applications are discussed below in more detail. | The Notice of Application and any 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 without notice to the application respondent. The timelines for interim applications are discussed below in more detail. | ||
| Line 121: | Line 121: | ||
#the date picked by the applicant for the hearing of the application. | #the date picked by the applicant for the hearing of the application. | ||
The form | The form you must use is Form F31, which is linked to in [[Sample Supreme Court Forms (Family Rules)]]. The cost to file an application is $80.00. | ||
====Supporting affidavits==== | ====Supporting affidavits==== | ||
An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Notice of Application should describe the important facts that 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 earlier for another application. The form | An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Notice of Application should describe the important facts that 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 earlier for another application. The form you must use is Form F30, set out in the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and linked to in [[Sample Supreme Court Forms (Family Rules)]]. | ||
The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]]. | The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]]. | ||
| Line 133: | Line 133: | ||
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. | 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. | ||
To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the applicant by ordinary service | To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these 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?]]. | ||
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. | 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. | ||
| Line 149: | Line 149: | ||
*the amount of time the application respondent thinks it will take for the application to be heard. | *the amount of time the application respondent thinks it will take for the application to be heard. | ||
The form | The form you must use is Form F32, set out in the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and linked to in [[Sample Supreme Court Forms (Family Law)]]. There is no fee to file an Application Response. | ||
The application respondent can, at any time after being delivered with a Notice of Application, choose 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. | The application respondent can, at any time after being delivered with a Notice of Application, choose 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. | ||
| Line 155: | Line 155: | ||
====Supporting affidavits==== | ====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 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 | 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 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 you must use is Form F30, set out in the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and linked to in [[Sample Supreme Court Forms (Family Law)]]. | ||
The process for drafting affidavits and the rules about the content of affidavits are discussed in the [[How Do I Prepare an Affidavit?]]. | The process for drafting affidavits and the rules about the content of affidavits are discussed in the [[How Do I Prepare an Affidavit?]]. | ||
| Line 173: | Line 173: | ||
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. | 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 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 thirty. 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. | 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 thirty. 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. | ||
===Application Records=== | ===Application Records=== | ||
| Line 201: | Line 201: | ||
Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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: | Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx 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: | ||
#The court file number, court registry and the names of the parties, | #The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents. | ||
#The title of the document being filed ("Application Record"). | #The title of the document being filed ("Application Record"). | ||
#The claimant's address for delivery, telephone number and fax number. | #The claimant's address for delivery, telephone number and fax number. | ||
| Line 221: | Line 221: | ||
The applicant will address the judge first, and present his or her case, explaining: | The applicant will address the judge first, and present his or her case, explaining: | ||
*what orders the | *what orders the applicant is asking the judge to make, | ||
*why the judge can make the orders the | *why the judge can make the orders the applicant is asking for, and | ||
*the facts | *the facts that motivated the application. | ||
The application respondent will then present his or her side of the case and explain why the judge shouldn't make the orders the applicant is asking for. The applicant will then 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. | The application respondent will then present his or her side of the case and explain why the judge shouldn't make the orders the applicant is asking for. The applicant will then 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. | ||
| Line 241: | Line 241: | ||
===Timelines=== | ===Timelines=== | ||
The rules about the timelines for chambers applications can be complicated, and change depending on whether the application is for a interim order, a final order or an order changing a final order. | The rules about the timelines for chambers applications can be complicated, and may change depending on whether the application is for a interim order, a final order, or an order changing a final order. | ||
====Making an application==== | ====Making an application==== | ||
| Line 315: | Line 315: | ||
If you can make the call, try to reach an agreement on: | If you can make the call, try to reach an agreement on: | ||
*the date when you'll have the application materials to the | *the date when you'll have the application materials to the application respondent, | ||
*the date when the | *the date when the application respondent will get his or her reply materials to you, and | ||
*the hearing date. | *the hearing date. | ||
