Interim Applications and Provincial Court Family Law Proceedings

Once court proceeding has started, it's often helpful, if not necessary, to get one or more short-term orders about important things like where the children will live, or whether and what amount of spousal support should be paid. Issues like these can't wait until the trial is over and need to be dealt with immediately, although they'll only be dealt with on a temporary basis until the trial can be heard. To get short-term orders like these, called interim orders, you must make an interim application in court. In Provincial Court, interim orders can also come out of Family Management Conferences or Family Settlement Conferences where a discussion can be had with the judge about the kinds of interim orders that might be suitable, and the process is less formal.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Provincial Court, and reviews some of the facts that are important for a variety of common applications.

Introduction

The word interim comes from the Latin for "meanwhile." Interim applications are requests that the court make temporary, short-term orders called, appropriately enough, interim orders. Interim orders are made after a court proceeding has started and before the court proceeding has ended, whether the proceeding ends with a trial or a settlement. Interim orders last only until:

1. another interim order is made that cancels or changes the earlier interim order;
2. the court proceeding has ended with a trial and a judge's final order that wraps up all the legal issues, including the issues addressed in any interim orders; or,
3. the court proceeding has ended with a settlement that addresses and resolves all of the issues that would normally be wrapped up by a trial.

Interim orders can be very useful in establishing 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 of British Columbia, the judge described interim orders saying:

"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.

"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."

In other words, interim orders are mean to tide people over until the court proceeding they're involved with is done. But these applications aren't heard with the benefit of the full evidence available at trial — and can't be heard with the full evidence available at trial — and the results they provide are sometimes crude and imperfect. If you need an interim order, make your application. But be prepared to accept what you get.

Interim orders are available under the Provincial Court Family Rules and the Family Law Act. Interim orders under the Family Law Act concern child support, spousal support, parenting arrangements, and companion animals (pets), as well as orders about the protection of people, and orders about the behaviour of the parties to a court proceeding.

The potential purposes 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, sometimes to get some financial support flowing, and sometimes to move a court proceeding toward trial. Interim orders are good for getting a routine in place, usually about the kids and support, and setting up some rules about the relationship between the parties.

• What should the children's parenting schedule look like?
• How will parents make decisions for the children?
• Should child support be paid and, if so, how much should be paid? Do the children have any special expenses that need to be covered?
• Should spousal support be paid and, if so, how much should be paid and by whom?
• Where should the family's companion animal live?
• Is a protection order necessary?

Interim orders that are designed to govern the relationship between the parties often come in the form of protection orders, and conduct orders.

Conduct orders, which are meant to govern a party's behavious, are available under Division 5 pf Part 10 of the Family Law Act and are orders that require someone to do or not do a specific thing, such as orders that:

• one or more parties participate in another dispute resolution process, or take a specific service or program like a parenting after separation course,
• the court proceeding be delayed while the parties try to resolve their dispute out of court,
• a party or a child must go to counselling,
• a party must pay certain expenses related to the family home, like the mortgage or property insurance, or not terminate the utility services for the home,
• a party not talk to the children about the issues in the court proceeding, or
• a party make best efforts to speak positively about the other parent to the children (and not make negative comments about the other parent to the children).

Protection orders are designed to protect family members and are enforced by police. (A "family member" is a person's spouse, a parent or guardian of a person's child, someone a person lives with, and a person's child.) They include orders that someone:

• not communicate with the family member,
• not go to a place where the family member lives, goes to school, or works,
• not possess weapons, or
• not stalk or harass the family member.

Other types of interim order deal with procedural questions about the management of the court proceeding, rather than with the relationship between the parties and their children. In Provincial Court these are called case management orders. These orders can be useful to:

• set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children, like report cards and education assessments, or court documents like Form 4 Financial Statements, lists of documents, etc.
• authorize the preparation of a views of the child report or a parenting assessment,
• appoint a lawyer for the child,
• fix dates for conferences, like a Family Management Conferences or a Family Settlement Conferences, or
• set the dates for the trial of the court proceeding.

Pretty much anything can be dealt with at an interim application. 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 the judge's decision is handed down following a trial.

Interim applications and family law matters

Most Provincial Court family proceedings are started by a party filing a Form 3 Application About a Family Law Matter. For these cases, interim orders are typically be sought after the claimant has filed and served their Form 3, and once the respondent has filed and served their Form 6 Reply to an Application About a Family Law Matter (along with any Form 4 Financial Statements that are often required).

The Family Management Conference ("FMC") typically offers the first opportunity for either party to request interim orders about the big family law issues that bring people to court, such as child support, spousal support, parenting arrangements, guardianship, and the other issues defined in the Provincial Court Family Rules as family law matters. The Provincial Court Family Rules encourages parties to resolve their family law matters at the FMC, even if only a temporary resolution is possible. This could include an interim plan for what support payments and parenting time schedules should look like should a final resolution need to wait for a full trial. When even interim issues are not able to be resolved following an FMC, the judge or family justice manager usually books the parties for a further FMC (where more or different interim orders could be made) or for trial (where final orders are made). If requested by a party or suggested by a judge, a judge might also decide that the matter should go to a Family Settlement Conference. See the section on Conferences and Provincial Court Family Law Proceedings in this chapter for more details.

Interim applications and other matters

There are times when orders for issues — issues outside of the typical definition of family law matters — need to be handled more directly and with less of a wait. Urgent issues, specific priority parenting matters, protection orders, and some case management issues or enforcement actions may justify a process that bypasses the usual steps required in applications about family law matters. The Provincial Court Family Rules sets out pathways, and special forms, for the common circumstances when an interim application must be handled earlier than is normal. These applications can be made whether or not someone has filed a Form 3 Application About a Family Law Matter.

Common procedures for interim applications in Provincial Court include:

• Form 12 Application About a Protection Order — used to ask the judge for an order that protects a family member from another family member under Part 9 of the Family Law Act.
• Form 15 Application About Priority Parenting Matter — used when a decision needs to be made quickly about a priority parenting matter that the guardians do not agree on. These priority issues are specific, and defined in the Provincial Court Family Rules. Examples include consents for travel or medical treatment for a child, when a child is wrongfully removed or abducted, or when the child protection authorities become involved.
• Form 16 Application for Order Prohibiting the Relocation of a Child — used by the objecting party when there is an existing order or agreement about parenting arrangements, but the other party wants to move away with a child and has given written notice to the objecting party of their intention to do this under section 66 of the Family Law Act. If no order or written agreement exists, parties should use the Form 15 Application About a Priority Parenting Matter process, whether that party wants to relocate the child or is opposing a potential relocation. Applications to prevent relocations have strict timelines and it is best to get legal advice as soon as possible if this is an issue.
• Form 29 Application About Enforcement — used when a party needs to enforce a term in a court order, parenting coordinator's determination, or written agreement that the other party is not following (for example, not paying support as agreed).
• Case management orders:
  • Form 10 Application for Case Management Order — used to apply for case management orders which require the other party has notice, and require parties to appear before a judge. This includes adjourning a court appearance, cancelling a subpoena, appointing a lawyer for a child, and so on. If the other party agrees to the order you want, this form can also be used.
  • Form 11 Application for Case Management Order Without Notice or Attendance — used to ask the judge for case management orders that do not need to involve the other, such as permission to use another method of attendance (e.g. video conference), to serve documents on another party by some other method than personal service, or to extend a deadline for filing a court document.
• Form 39 Request for Scheduling — used if it's been less than a year since a party took any steps in the proceeding, and when certain conditions also apply (as spelled out on the form), for example a party is applying for an interim order after completing a Family Management Conference.

Bringing an application

The person bringing the application, who we'll call the applicant, must file their form, and then (unless the procedure is without notice) serve a copy of the application on all of the other parties, who we'll call the application respondents.

Usually it's required to give the other party notice about any interim application that will have an impact on them, and to serve them with the forms. As mentioned above, there are some case management orders that do not really affect the other party and so those applications are routinely allowed without notice to the other party (e.g. Form 11 Application About a Case Management Order Without Notice or Attendance). For every other application, including a Form 39 Request for Scheduling, you must give notice to the other party unless you have a court order allowing you not to give notice. You must look at each application to ensure you are giving enough notice (usually at least seven days).

Under some circumstances, the Court will consider what's called an extraordinary procedure for applications that will have an impact on the other party, but which need to be heard without that party's involvement because there is a real risk of serious consequences if they are warned about it. These are rare exceptions to the general rule that an application respondent should have a fair chance to reply to the applicant's interim application:

• An applicant who wants a protection order can file a Form 12 Application About a Protection Order and select the option to have it heard without notice. The judge will consider if it's appropriate to make the order without notice to the other party, or if it's appropriate to serve the application respondent and give them a chance to respond.
• Certain other without notice applications (for priority parenting matters, prohibiting relocation of a child, or for enforcement) can be made in the right circumstances where there could be serious consequences if notice were given. These forms should be filed with the Form 11 Application for Case Management Order Without Notice or Attendance, asking that the application be made without notice for a judge to consider.

Defending an application

If you have been served with an interim application, you may answer the application with a Form 19 Written Response to Application. The written response is not a substitute for showing up to speak to the application, but it can be helpful to have. The form must be served on the other party before the court date.

The hearing

For nearly all of these applications, the first appearance will be set on that court registry's family remand day (if your court registry has these days). Some will be heard earlier (especially a Form 12 Application About a Protection Order where there is urgency), and if you want an application to be heard earlier than the next family remand day (or to shorten the notice period), you can apply using the Form 11 Application About a Case Management Order Without Notice or Attendance.

Depending on how busy the family remand day is, your application may be heard fully and the judge may make an order. However, if the judge wants more evidence or there are too many applications that day to fully hear your matter, the judge may require that a hearing be scheduled.

On the date set, show up at court a bit earlier than the appointed time. It's especially important for the application respondent to attend court. If an application respondent doesn't come to court on the date set for the hearing of an application, the court may hear the application in the absence of the application respondent and make the order requested by the applicant.

Don't ignore the hearing date!

The court may be able to hear your matter in full, so you need to be fully prepared.

When you arrive, let the court clerk know which case you're involved with and what your name is. When your case is called by the clerk, walk up to the front of the courtroom. You and the other party will stand to either side of the central podium. The judge will ask you to identify yourselves and will ask the applicant what their application is all about.

The applicant will explain the orders they are asking for, why they're asking for those orders, and will have the opportunity to call evidence. Evidence is usually provided orally in Provincial Court, although affidavits can certainly be used. Many judges would prefer to have an affidavit to read, so if you can prepare one, you should. The application respondent will have a chance to reply to the applicant's evidence, by:

1. cross-examining the applicant's witnesses, and challenging the evidence they have given, or
2. filing an affidavit in reply to the applicant's affidavit.

Once the applicant's case is done, the application respondent may present their own case and provide evidence just the way the applicant did, either through witnesses or their own affidavit. The applicant will be able reply to the application respondent's evidence.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their case and argue why the judge should make the order asked for. The application 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 application respondent's reply.

Once everyone is done, the judge will give their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a reserved judgment, and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing.

Remember to stand whenever the judge speaks to you, if you're able to stand. A discussion of courtroom etiquette and protocol is available in the Helpful Guides & Common Questions part of this resource under How Do I Conduct Myself in Court at an Application?. The section on Trials and Provincial Court Family Law Proceedings in this chapter gives helpful tips on trial management that are also relevant to hearings for interim applications.

After the hearing

If the parties to the hearing were represented by lawyers, the applicant's lawyer will usually draft an order based on the judge's decision. If there were no lawyers present, the court clerk will draft the order. While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

Common interim applications

In this part of this section, we'll review some of the basic facts that you'll usually need to prove for some of the most common interim applications in family law court proceedings. This is only a rough guide. The particular facts that are important will change from case to case, and you'll need to exercise your judgment about what those facts are.

It might help to look at some of the common terms that are included in Provincial Court Orders, by checking the Family Law Act Orders Picklist.

Parenting children

When making an application about parenting arrangements and contact under the Family Law Act (and this includes the Form 3 Application About a Family Law Matter), important facts usually include:

• the children's names, birth dates, and ages;
• where the children go to school and what grades they're in;
• any important health or educational concerns;
• the occupation of each parent;
• each parent's usual work schedule;
• how the parents shared responsibility for parenting the children while they were together;
• who was responsible for arranging things like visits to the doctor and dentist;
• who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done;
• how the parents have shared the parenting of the children since they separated;
• the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation;
• a description of any actual problems with a parent's capacity to care for the children;
• any history of family violence, before and after separation;
• the other caregivers or support at or near a parent's home; and,
• the extracurricular activities the children are involved in, if that's important for scheduling parenting time or contact.

Many of these facts will be important in interim applications too, and if they aren't already listed in the Form 3 Application About a Family Law Matter, they need to be included, either in the application form or given as evidence at the hearing.

Changing orders about parenting children

If the application is to set aside an agreement about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement, namely Why is the agreement no longer in the best interests of the children? Other important facts might include:

• how the agreement has worked out;
• if the parents followed the terms of the agreement; and,
• if the agreement met the children's needs and, if not, why not.

Child support

The facts that important in most applications for child support include:

1. the children's names, birth dates, and ages;
2. how the children's time is divided between the parents;
3. whether some or all of the children are stepchildren to the person who is to pay child support;
4. whether some or all of the children are receiving child support from another parent;
5. the nature of each parent's employment;
6. each parent's income from their employment and any other source; and,
7. whether the children have special or extraordinary expenses, the cost of those expenses, and whether there are any tax credits, subsidies or bursaries that reduce the actual cost of those expenses.

Basic financial information for child support

Applications about child support typically require that each parent cough up certain documents in order to establish their income, in addition to a sworn Form 4 Financial Statement. The Legal Aid BC's Family Law website's information page "Legal forms & documents" has more information in the section "Filling out court forms." The most common income documents for people who are employees are:

1. the last three years of the person's personal income tax returns;
2. all notices of assessment or reassessment received in relation to the last three tax years; and,
3. a recent paystub showing the person's earnings-to-date or a letter from their employer confirming their income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

1. statements of their professional or business income;
2. a statement showing a breakdown of all payments to non-arm's-length parties like children or new spouses; and,
3. balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

1. corporate financial statements for the three most recent fiscal years;
2. corporate tax returns for the three most recent fiscal years; and,
3. a statement showing a breakdown of all payments to non-arm's-length parties like children or new spouses.

Changing orders about child support

If the application is to change the amount of child support being paid under a court order, important facts will include the facts that address the threshold legal tests for changing child support, namely Has there been a change that would cause a different amount of support to be paid under the Child Support Guidelines?, usually a change in someone's income, or Has there been a change in the needs and circumstances of the child? Other facts that might support a change in the amount of child support include:

1. whether you've discovered new information about someone's income, or their ability to earn income, since the order was made; and,
2. whether you've discovered proof that someone's financial disclosure was incorrect, inadequate or misleading since the order was made.

Other important facts usually include:

• each person's present income;
• the children's current ages, and any other facts that are relevant to the children's continuing entitlement to receive child support; and,
• updated information concerning the children's special or extraordinary expenses and the cost of those expenses.

Changing agreements about child support

If the application is to set aside an agreement about child support, important facts will include the facts that address the legal test that must be met to set aside an agreement, namely Why should the court make a different order than what was agreed to? and What amount of support should the court order?

Spousal support

When making the first application for spousal support, important facts will include information about things like:

1. the date the parties began to live together and the date they married, if they got married;
2. the date of separation;
3. the parties' ages, including the recipient's age at the date of separation;
4. each party's present health;
5. any factors limiting a party's ability to obtain employment;
6. the parties' present employment circumstances;
7. the parties' employment history during their relationship, including any significant periods of unemployment;
8. each party's present income and the sources of that income;
9. a description of each party's living expenses after separation;
10. any career sacrifices made during the relationship, including any promotions, raises, or educational opportunities foregone by the party;
11. any moves during the parties' relationship that impacted either or both parties' employment prospects;
12. the parties' education and training history, prior to and during the relationship;
13. contributions by one party to the other party's career during the relationship;
14. a description of any education and training taken after separation, especially any education geared to finding employment;
15. the ages and school status of the children at the date of separation; and,
16. the arrangements that have been made for the parenting of the children.

Basic financial information for spousal support

All applications about spousal support typically require that each spouse cough up certain documents to prove their income, in addition to a sworn Financial Statement. See the Legal Services Society's Family Law website's information page "Legal forms & documents" and the section "Filling out court forms" for more information. The most common income-related documents for people who are employees are:

1. the last three years of the person's personal income tax returns;
2. all notices of assessment or reassessment received in relation to the last three tax years; and,
3. a recent paystub showing the person's earnings-to-date or a letter from their employer confirming their income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

1. statements of their professional or business income;
2. a statement showing a breakdown of all payments to non-arm's-length parties like children or new spouses; and,
3. balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

1. corporate financial statements for the three most recent fiscal years;
2. corporate tax returns for the three most recent fiscal years; and,
3. a statement showing a breakdown of all payments to non-arm's-length parties like children or new spouses.

Changing orders about spousal support

If the application is to change an order about spousal support, important facts will include those necessary to address the threshold legal tests for changing an order for spousal support. Has there been a change in the means or needs of either spouse since the last order was made? Other facts that might support a change in the amount of child support include:

1. whether you've discovered new information about someone's income, or their ability to earn income, since the order was made; and,
2. whether you've discovered proof that someone's financial disclosure was incorrect, inadequate or misleading since the order was made.

Other important facts usually include:

1. the terms of the initial order (include a copy of the initial order as an exhibit!);
2. each party's present income;
3. each party's income and other financial circumstances at the time of the initial order;
4. the steps the recipient has taken to become financially self-sufficient;
5. the education or training taken by the recipient since the order was made;
6. any employment taken by the recipient since the order or agreement was made;
7. any changes in the employment circumstances of the payor;
8. whether the recipient has remarried or is in a new unmarried spousal relationship; and,
9. whether the payor has acquired new family support obligations since the order was made.

Changing agreements about spousal support

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated because:

1. a party failed to disclose relevant income, property, or debt;
2. one party took advantage of the other party's vulnerability or ignorance;
3. a party didn't understand the nature of the agreement;
4. the agreement is unconscionable, meaning grossly unfair; or,
5. a party did not sign the agreement voluntarily.

Under the second test, which you might use if you can't show that there were problems when the agreement was negotiated, you could include facts that show the agreement is significantly unfair and talk about:

1. how long it's been since the agreement was signed;
2. any changes in the needs or circumstances of either party;
3. whether parties' intended to have a final deal when the agreement was signed;
4. how important the agreement was to each party in planning their lives and arranging their affairs; and,
5. how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

Protection orders

The court can make a variety of orders where there is, or has been, a history of family violence and someone is in need of current protection. These orders are called "protection orders" and are available under Part 9 of the Family Law Act. More information about family violence can be found in the chapter on Family Violence.

The terms of a particular protection order will change depending on the circumstances and the sort of terms that make the most sense. The protection orders that are available are listed in section 183(3) and include:

1. orders prohibiting or limiting contact with the at-risk family member;
2. orders prohibiting a person from attending, nearing, or entering a place regularly attended by the at-risk family member, including the residence, property, business, school, or place of employment of the at-risk family member, even if the person owns the place, or has a right to possess the place;
3. orders prohibiting a party from following the at-risk family member;
4. orders prohibiting the possession of a weapon, firearm, or a specified object;
5. orders prohibiting the possession of a licence, registration certificate, authorization, or other document relating to a weapon or firearm; and,
6. orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member, or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

When making an application for a protection order under the Family Law Act, important facts will usually include:

1. the date when you began living together, the date of marriage, if you got married, and the date you separated;
2. the names, birth dates, and ages of your children, if you have any children;
3. the ages and occupations of each party;
4. the history of any family violence, which could include
   • a description of the dynamics of the parties' relationship, including whether it has stayed the same or changed over time,
   • a description of any physical, sexual, psychological, or emotional abuse or any other coercive or controlling behaviours, as well as a description of the specific harm someone suffered, and
   • a description of any destruction to property;
5. any factors which have caused a party to be isolated in the relationship;
6. any factors which make a party more vulnerable, such as substance abuse, financial dependence, mental health problems, physical health problems, pregnancy, and the other party's access to weapons;
7. any concerns about the children having seen or otherwise been exposed to family violence, and how the children reacted;
8. why a party continues to feel afraid of or intimidated by the other party;
9. if applicable, the location that the other party should be prevented from going to, like a party's home, place of employment, school, and so on; and,
10. if available, copies of things like
    • photographs of any injuries or damage to property caused by the other party,
    • harassing emails or texts sent by the other party, and
    • evidence from other people who have witnessed or overheard the abusive or controlling behaviours of the other party.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Supreme Court Act
• Supreme Court Family Rules
• Court Rules Act

Links

• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling
• Supreme Court Chambers Lists
• People's Law School:Applying for an Interim Order in a Family Law Case in Supreme Court]
• Supreme Court Information Packages

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kendra Marks, 24 January 2025.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.