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Difference between revisions of "Interim Applications in Family Matters"
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Interim Applications in Family Matters (view source)
Revision as of 04:19, 15 April 2013
, 04:19, 15 April 2013→The Provincial Family Court
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Most often, applications in the Provincial Court are based on oral evidence rather than affidavits. As a result, the exchange of affidavits is not a mandatory part of the process. | Most often, applications in the Provincial Court are based on oral evidence rather than affidavits. As a result, the exchange of affidavits is not a mandatory part of the process. | ||
The principle [http://canlii.ca/t/85pb Provincial Court (Family) Rules] | The principle [http://canlii.ca/t/85pb Provincial Court (Family) Rules] that relate to these documents and the application process are: | ||
*Rule 1: definitions | *Rule 1: definitions | ||
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#Rule 5(8) sets out some exceptions to the rule that may allow a party to ask a judge for to be exempted from all or part of the rule. | #Rule 5(8) sets out some exceptions to the rule that may allow 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, | 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, but the [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php Parenting After Separation program] is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of [http://canlii.ca/t/85pb Rule 21]: | ||
*Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program. | *Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program. | ||
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*Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances. | *Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances. | ||
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 program three or four times. However, | 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 program three or four times. However, most parents, once they have complied with Rules 5 and 21, can follow the standard rules for bringing on interim applications, described below. | ||
====Family Case Conferences==== | ====Family Case Conferences==== | ||
Family Case Conferences (FCCs) are similar in many ways to the Judicial Case Conferences (JCCs) common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must. Both FCCs and JCCs are discussed in | Family Case Conferences (FCCs) are similar in many ways to the Judicial Case Conferences (JCCs) common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must. Both FCCs and JCCs are discussed in [[Case Conferences in a Family Law Matter]]. | ||
===Making an application=== | ===Making an 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 court form, Form 16, that comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes | To make an interim application, the applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard court form, Form 16, that comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes that can simply be ticked off to indicate the sort of order that you want the court to make. It is also available electronically and is linked to in [[Sample Provincial Court Forms (Family Law)]]. | ||
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 days'' 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 days set aside for hearing interim applications in family law cases. | The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases. | ||
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===The hearing=== | ===The hearing=== | ||
On the date set for hearing, show up at court at the appointed time. (Note that [http://canlii.ca/t/85pb 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 stand to one side of the centre podium. | On the date set for hearing, show up at court at the appointed time. (Note that [http://canlii.ca/t/85pb 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 stand 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 speaks 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. Most judges would prefer to have an affidavit, and if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit. | 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 speaks 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. Most judges would prefer to have an affidavit, and if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit. | ||
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Once the applicant's case is done, the respondent may 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. | Once the applicant's case is done, the respondent may 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 | A discussion of courtroom protocol is available in [[How Do I Conduct Myself in Court at an Application?]]. | ||
After the evidence from both sides has been given, the applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply. | After the evidence from both sides has been given, the applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply. | ||
