Interim Applications in Family Matters: Difference between revisions
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{{JP Boyd on Family Law TOC}} | {{JP Boyd on Family Law TOC}} | ||
Once | 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 page 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 which should be proved for a variety of common interim applications. | ||
'''DRAFT UNEDITED''' | '''DRAFT UNEDITED''' | ||
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==Introduction== | ==Introduction== | ||
Interim applications are applications for temporary, short term orders made | Interim applications are applications for temporary, short-term orders made before 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. | ||
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 ''M.(D.R.) v. M.(R.B.)'', a 2006 case of the Supreme Court, 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 ''M.(D.R.) v. M.(R.B.)'', a 2006 case of the Supreme Court, 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> | ||
Interim applications are particularly common in family law | ===The Subjects of Interim Applications=== | ||
Interim applications are particularly common in family law proceedings, 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: | |||
*Where will the children live most of the time? | *Where will the children live most of the time? | ||
Line 24: | Line 26: | ||
*Should spousal support be paid, and, if so, how much should be paid? | *Should spousal support be paid, and, if so, how much should be paid? | ||
*Should only one spouse have the right to live in the family home? | *Should only one spouse have the right to live in the family home? | ||
*Should the | *Should the property be frozen? | ||
*Is a | *Is a protection order necessary? | ||
Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as: | |||
#not disposing of property; | |||
#not racking up debt; | |||
#not talking to the children about the issues in the court proceeding; or, | |||
#not going to a particular place. | |||
Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as: | |||
#not | #not communicating with the family member; | ||
#not | #not going to a place where the family member goes to school or works; | ||
#not possessing weapons; or, | |||
#not | #not stalking the family members. | ||
#not | |||
Other types of interim order deal with procedural matters that have to do with the | Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to: | ||
#set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents; | #set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents; | ||
Line 42: | Line 50: | ||
#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 final in nature, like an order for divorce or an order dividing the family | 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 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. | ||
===Making Interim Applications=== | |||
#the person making the application | 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 an 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 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; and, | #the Applicant replies to the Application Respondent's reply; and, | ||
Line 55: | Line 65: | ||
==The Supreme Court== | ==The Supreme Court== | ||
Interim applications are only brought after | Interim applications are only brought after a court proceeding has 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 parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, or to freeze the family property, for example. | ||
The main Rules of Court about the application process and the forms used in this process are: | The main Rules of Court about the application process and the forms used in this process are: | ||
Line 63: | Line 73: | ||
*Rule 6-2: ordinary service | *Rule 6-2: ordinary service | ||
*Rule 7-1: Judicial Case Conferences | *Rule 7-1: Judicial Case Conferences | ||
*Part 10: | *Part 10: interim applications and chambers procedure | ||
*Rule 10-2: where applications are heard | *Rule 10-2: where applications are heard | ||
*Rule 10-3: chambers | *Rule 10-3: chambers procedure | ||
*Rule 10-4: affidavits | *Rule 10-4: affidavits | ||
*Rule 10-6: normal application process | *Rule 10-6: normal application process | ||
Line 73: | Line 83: | ||
*Rule 21-2: time | *Rule 21-2: time | ||
Sample court forms and blank court forms for download are available in ______ . | |||
Sample court forms and blank court forms for download are available in | |||
===When to Make an Application=== | ===When to Make an Application=== | ||
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 | 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 court proceeding 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. | ||
Rule 7-1(3) sets out the exceptions to the requirement that a JCC be held before any applications can be brought: | 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 | #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 | #when the application is being made without notice being given to the other side (sometimes called an ''ex parte application''). | ||
If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. | If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. | ||
Once | Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC. | ||
JCCs are discussed in more detail in the chapter | JCCs are discussed in more detail in the chapter _____ . | ||
===Making an Application=== | ===Making an Application=== | ||
To start an interim application, you must prepare a Notice of Application and | 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 Rule 6-2, usually 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 supporting | 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. | ||
====Notice of Application==== | ====Notice of Application==== | ||
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The Notice of Application describes: | The Notice of Application describes: | ||
#the orders and declarations the Applicant is asking for (also called the | #the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for); | ||
#the facts supporting the application; | #the facts supporting the application; | ||
#the legal grounds on which the application is made; | #the legal grounds on which the application is made; | ||
#the | #the affidavits or other evidence on which the Applicant relies on in support of the relief sought; | ||
# | #the amount of time the Applicant thinks it will take for the application to be heard; and, | ||
#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 which must be used is Form F31, set out in | The form which must be used is Form F31, set out in the Supreme Court Family Rules. The cost to file an application is $80.00. | ||
====Supporting Affidavits==== | ====Supporting Affidavits==== | ||
An | 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 which must be used is Form F30, set out in 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 ? chapter of this website. | |||
===Replying to an Application=== | |||
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 | 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, usually 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. | ||
The Application Response and supporting | 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. | ||
====Application Response==== | ====Application Response==== | ||
An Application Response | An Application Response describes: | ||
# | #the orders sought by the Applicant which the Application Respondent agrees to; | ||
# | #the orders that the Application Respondent opposes; | ||
# | #the orders to which the Application Respondent neither opposes nor consents (this is called ''taking no position'' on an order); | ||
# | #the facts supporting the Application Respondent's position; | ||
# | #athe legal grounds on which any opposed orders are opposed; | ||
# | #the affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and, | ||
# | #the amount of 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 | The form which must be used is Form F32, set out in 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, | The 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. | ||
====Supporting Affidavits==== | ====Supporting Affidavits==== | ||
An | 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 which must be used is Form F30, set out in the Supreme Court Family Rules. | ||
The process for drafting | The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website. | ||
===Responding to the | ===Responding to the Reply=== | ||
The Applicant may prepare an | The Applicant may prepare an affidavit responding to the affidavits provided by the Application Respondent. This new affidavit must be limited to answering 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 | 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 | 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 file and make arguments based on a new affidavit. | ||
===A Short Note about Time Estimates=== | ===A Short Note about Time Estimates=== | ||
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. | Time estimates are very important in interim 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 | 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 | 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=== | ||
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 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 | 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 of the Record on the Application Respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail. | ||
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. | |||
An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including a passing a couple of hex bolts through the left-hand margin. | An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including a passing a couple of hex bolts through the left-hand margin. | ||
The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, | The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order: | ||
# | #the index to the Application Record; | ||
#the Notice of Application (Tab 1); | #the Notice of Application (Tab 1); | ||
#the Response to Application (Tab 2); and, | #the Response to Application (Tab 2); and, | ||
#the Affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on). | #the Affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on). | ||
(A "tab" is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a "table of contents divider" that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.) | |||
Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases. | Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases. | ||
Line 194: | Line 201: | ||
#the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing. | #the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing. | ||
A sample cover page is available in | A sample cover page is available in _______. | ||
===The Hearing=== | ===The Hearing=== | ||
The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day | The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will walk up to the front of the courtroom and sign 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 in 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 will call each application by its 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 | When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." | ||
A discussion of courtroom protocol is available in the How Do I ? | The Applicant will address the judge first, and present his or her case, explaining: | ||
#what orders the Applicant is asking the judge to make; | |||
#why the judge can make the orders the Applicant is asking for; and, | |||
#the facts which 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. | |||
A discussion of courtroom protocol is available in the How Do I ? chapter 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 | 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''. | ||
===After The Hearing=== | ===After The Hearing=== | ||
It is the job of the Applicant to turn whatever the judge or master has decided into a written order. | It is usually the job of the Applicant's lawyer to turn whatever the judge or master has decided into a written order. If the Applicant doesn't have a lawyer, the lawyer for the Application Respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order. | ||
The registry staff enter the draft order by | The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer 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 will be signed and stamped by the registry and added to the book of orders. | ||
It is important to know that although 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, whether it takes a day or a month to enter the order. | |||
===Timelines=== | ===Timelines=== | ||
The rules about the timelines for chambers applications | 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. | ||
====Making an Application==== | |||
The Applicant must file and serve the Notice of Application and supporting materials: | The Applicant must file and serve the Notice of Application and supporting materials: | ||
*For 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. | |||
==== | ====Replying to an Application==== | ||
The Application Respondent must file and serve the Application Response and supporting materials: | The Application Respondent must file and serve the Application Response and supporting materials: | ||
*For 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 | ====Responding to a Reply==== | ||
The Applicant must file and serve any new supporting materials, usually limited to new affidavits: | The Applicant must file and serve any new supporting materials, usually limited to new affidavits: | ||
*By 4:00pm on the business day that is one full business day before the hearing date. | |||
====Application Records==== | ====Application Records==== | ||
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: | The Applicant must file the Application Record in court, along 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. | |||
====Sample Timelines==== | ====Sample Timelines==== | ||
Line 550: | Line 566: | ||
The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets. | The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets. | ||
==Further Reading in this Chapter== | |||
Return to the <span style="color: red;">first page</span> in this chapter. | |||
* other chapters | |||
==Page Resources and Links== | |||
Templates for the court forms referred to in this page, and examples of what the court forms look like when they're filled out, are available in the _____ chapter. | |||
===Legislation=== | |||
*Supreme Court Act | |||
*SC rules of court | |||
*Provincial Court Act | |||
*PC rules of court | |||
===Links=== | |||
* <span style="color: red;">bulleted list of linked external websites referred to in page</span> | |||
...this section should alway list any public resources that might be available, not just what was referred to in the page... please add LSS resources, the courttips website from JES, etc. | |||
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. | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} |