Difference between revisions of "Applying for an Interim Order in a Family Law Case in Supreme Court"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://www.watsongoepel.com/people/shelagh-c-kinney/ Shelagh Kinney], Watson Goepel|date= March 2020}} {{Dial-A-Law TOC|expanded = disputes}}
A person involved in a family law case may need to get a temporary court order — known as an '''interim order''' — to deal with short-term, important, or urgent issues. Learn the process for making an interim application in Supreme Court.


{{Dial-A-Law TOC|expanded = family}}
{{PLSStorybox
This script explains why people may need an interim order in a family law case in the British Columbia Supreme Court, how to apply for an interim order, and what to do before the hearing. The reference to "applicant" in this script apply to a party asking for a court order.
| image = [[File:Eliaspls.png|link=]]
| text      = ”My kids live with my spouse, Mikki, most of the time. We set it up that way because of my work schedule. But I changed jobs a few months ago. I want to see the kids more. Mikki doesn’t agree, so I filled out some paperwork and took it to Supreme Court, where our divorce case is. A friend of mine gave Mikki a copy of the court documents. She filed something in reply, and we’re going to court in a month.” <br>– Elias, Langley, BC
}}


At the end of the script, other information sources with much more detail are listed, including where to get the Supreme Court Rules and Forms.
==What you should know==


==What is an interim order in a family law case in the Supreme Court?==
===What an interim order is===
People involved in a family law case will often need an “interim order” after the case has begun but before it has wrapped up. Interim orders are temporary orders that are only meant to last until another interim order is made, or until the case is resolved with a final order or a settlement. Interim orders can deal with urgent problems that can’t wait, such as stopping someone from disposing of property or stopping the child from being taken out of town, or they can deal with questions about how the family will function until the case is resolved, such as where the child will live, whether support should be paid and if so to whom and in what amount.
Interim orders are '''temporary''' court orders made after a case has started but before it ends. They last until another interim order is made. Or, they can stay in place until the case is resolved by final agreement or an order made at trial.


==Applying for an interim order==
Interim orders can also deal with '''urgent problems'''. They can help with:
Rule 10-6 of the Supreme Court Family Rules describes how to apply for an interim order, called making an “interim application.” One party (the “applicant”) starts the process by preparing a Notice of Application using Form F31, found in Appendix A of the Rules. This form tells the judge the sort of order the applicant is looking for, explains why the judge should make that order, says what materials the applicant will be showing to the judge when making the application, and sets the day when the application will be heard.


The applicant will also prepare at least one affidavit, using Form F30. An affidavit is a written statement of the facts important to the application that is signed under oath before a commissioner for taking oaths, like a lawyer, court clerk or notary public. The affidavit gives the judge the information he or she will need to make a decision about the application.
* stopping someone from dealing with family property
* preventing the children from being taken out of town
* deciding where the children will live
* deciding if interim support should be paid by one party to help the other with expenses


Unless the application is made giving without notice to the other party (the “application respondent”) or the application is agreed to, both the Notice of Application and affidavit must be sent to the application respondent. Rule 6-2 says how these documents are sent to the other side, a process called “ordinary service.” Most of the time, ordinary service is accomplished by sending these materials by mail to the application respondent’s address for service, by fax to the application respondent’s fax number for service or by email to the application respondent’s email address for service.
===A summary of the application process===
[http://canlii.ca/t/8mcr The BC Supreme Court has rules] that set out the process for applying for an interim order.


==Picking the hearing date==
In a family law case, there are typically two people involved in an application: the person making it (the applicant) and the person replying to it (the respondent). They are the parties in the case.
The applicant must set the date when the application will be heard in the Notice of Application. Except for urgent applications, the very soonest an application can be heard is eight business days (business days are days then court is open for business, and don’t include weekends and holidays) from the date the application materials are sent to the application respondent. The applicant gets to pick the day of the hearing unless the hearing will take two hours or longer, in which case the applicant must schedule the hearing date with the court registry staff. Even if the application will take less than two hours, the applicant should contact the court registry to find out whether the day she or he has picked is a day when interim applications in family law matters are heard. Some court registries only have family law chambers on certain days.


==Responding to the application==
Let’s assume you’re the '''applicant'''. You start the process by filling out a '''notice of application'''. Then, you '''file''' this form and some supporting documents in court. After that, you need to arrange to serve the documents on the respondent.
The application respondent has five business days after the day of ordinary service to file his or her Application Response and supporting affidavits in court and send them, by ordinary service, to the applicant. The Application Response says which of the orders sought in the application are agreed to and which are opposed, and why the court shouldn’t make the orders that are opposed.


==Replying to the application respondent’s response==
If the respondent doesn’t agree with any part of the application, they need to file an '''application response''' and supporting documents in court. Then they need to serve those materials on you.
The applicant is allowed to prepare one more affidavit to address any important points raised in the application respondent’s materials. This affidavit must be filed in court and sent to the application respondent by ordinary service before 4:00 p.m. one business day before the date set for the hearing of the application.


==The Application Record==
One full day before the hearing, you must file some more material in court.
The applicant must prepare an Application Record for the hearing. An Application Record is a binder containing the following documents, separated by tabbed pages:
#the Notice of Application,
#the Application Response,
#all of the affidavits that the applicant will show to the judge, listed in his or her Application plus any new affidavits prepared in response to the application respondent’s materials, and
#all of the affidavits that the application respondent will show to the judge, listed in his or her Application Response.


(Any kind of bound format will do, but it’s usually easiest to put these documents into an ordinary three-ring binder.) The Application Record must begin with an index that says what document is at each tab.
At the hearing, each party will explain why the order they’re asking for should or shouldn’t be made. The court will consider the evidence and the law and then make a decision. This is recorded in an '''interim order'''.


The applicant must file the Application Record, along with an extra copy of the Notice of Application, in court and send a copy of the index on the application respondent by ordinary service before 4:00 p.m. one business day before the date set for the hearing of the application. (This is the same deadline as the deadline for the applicant to file any new affidavits prepared in response to the application respondent’s materials.)
==The steps in the application process==


The applicant and the application respondent should prepare exact copies of the Application Record for themselves. The application respondent will make his or her copy using the index that was sent by the applicant.
===Step 1. Prepare the notice of application===
The applicant — let’s say it’s you — starts the process by preparing a '''notice of application'''. The court has a specific form that must be used, form F31. This form tells the court what order you want and sets out the court date for the application hearing. It also explains the facts in support of the application and why the court should make that order.


==The hearing==
You also prepare an '''affidavit''' in form F30 in support of your application. An affidavit is a legal document in which a person makes statements they swear are true. You may also need to prepare other supporting documents depending on the type of order you’re seeking.
Judges and Masters hear interim applications in chambers, a public courtroom where all of the interim applications set for that day are heard. (Rule 10-6 says how interim applications are filed in court and schedule for a hearing in chambers. Rule 10-4 talks about how affidavits are prepared, and Rule 10-3 talks about the hearing process.)


On the day of the hearing, the applicant and the application respondent should go to the chambers courtroom at 9:45 a.m. and check in with the court clerk to say they are present in court. When the court clerk calls the name of the case, the applicant and application respondent (or their lawyers) should approach the table before the judge and the clerk and introduce themselves to the judge or master.
{| class="wikitable"
|align="left"|'''Tip'''
[https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms You can download the notice of application from the BC government website]. You can also find other court forms there. [[Supreme_Court_Forms_(Family_Law)|Completed samples of many forms are available at ''JP Boyd on Family Law'']].
|}


The applicant will start the hearing by describing the orders that he or she is asking for, listed in the Notice of Application, and by talking about the facts stated in the affidavits that explain why the judge should make those orders.
====Picking the hearing date====
In the notice of application, you must set out the hearing date for the application. Except for urgent applications, the soonest an application can be heard is '''eight full business days''' from the date the application materials are sent to the other party. (Business days don’t include weekends and holidays, when court is closed.)


When the applicant has finished, the application respondent will summarize his or her Application Response, the facts stated in the affidavits that explain why the court shouldn’t do as the applicant asks.
You get to pick the date of the hearing — unless the hearing will take two hours or longer. In that case, you must schedule the hearing date with the court registry staff.


After the application respondent finishes, the applicant will be allowed to make a short reply to answer any new points raised by the application respondent.
{| class="wikitable"
|align="left"|'''Tip'''
In picking the hearing date, you should check with the court registry to find out what days the court hears interim applications in family law cases. Some court registries only hear these types of applications on certain days. It’s also a good idea to check dates with the other party or their lawyer. That way you can pick a date you both can attend.
|}


It is important to know that the judge will only consider the facts that are stated in the affidavits. Neither the applicant nor the application respondent will be testifying during the hearing, and neither the applicant nor the application respondent will be able to ask each other questions. All of the evidence is provided through the affidavits in the Application Record.
===Step 2. File the application in court===
You must make three copies of the materials. Then, '''file''' the notice of application and affidavit in the court registry where your family law case is ongoing. There is a court filing fee.


==The decision==
{| class="wikitable"
After reviewing the documents and listening to the parties’ arguments, the judge or master will make an order. The court may make all, some or none of the orders that the applicant is asking for.
|align="left"|'''Tip'''
If you can’t afford the Supreme Court filing fees, you can ask the court to waive them. The Family Law website from Legal Aid BC has [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/supreme-court/get-order-waive-fees#0 a free step-by-step guide for getting an order to waive fees in Supreme Court].
|}


==The written order==
===Step 3. Serve the notice on the other party===
If one of the parties is represented by a lawyer, the lawyer will prepare the written interim order from the judge’s decision and file it in court. If neither party has a lawyer, a court clerk will prepare the written order.
You have to '''serve''' the notice of application and supporting documents on the other party. This can be done by '''ordinary service'''. This means delivering or leaving the documents with the other party. But it might also be possible to mail, fax, or email the documents. It all depends on what the other party put as their “address for service” in earlier documents.


It is important to know that the order is in force from the moment the judge or master gives his or her decision, not from the date the written order is prepared, and that the interim order will remain in force until the court makes another interim order on the same subject or until the family law case is resolved by a trial or a settlement.
The documents must be served on the other party '''at least eight full business days''' before the date set for the hearing.


==Summary==
===Step 4. Wait for a response===
The applicant begins an interim application by filing a Notice of Application and supporting affidavits in court and serving those materials on the application respondent at least eight business days before the date set for the hearing.
The other party, the respondent, has '''five business days''' to respond from the time they were served with the notice of application. They can file an '''application response''' and a supporting affidavit and then serve you with them. The response says whether they agree or disagree with what you’re asking for.


If the application respondent wants to object to any part of the application, he or she must file an Application Response and supporting affidavits in court and serve those materials on the applicant at least five business days after the date he or she was served with the applicant’s materials.
You can then fill out a responding affidavit. In it, you reply to any new information in the other party's material.


By 4:00 p.m. on the business day that is one business day before the hearing date, the applicant must: file any reply affidavits in court and serve them on the application respondent; prepare the Application Record and file it in court; and, serve a copy of the Application Record index on the application respondent.
===Step 5. Prepare the application record===
Before the hearing, you need to file an '''application record''' in court. This is a binder with copies of all the documents related to the interim application. There are specific requirements set out in the Supreme Court rules for how this material is organized.


The applicant should check in with the court clerk by 9:45 a.m. on the day of the hearing. When the application is called, the judge or master will listen to each party explain why the orders sought by the applicant should or shouldn’t be made. The judge or master will make a decision that will be prepared as a written order and filed in court.
As well, you must send the other party a copy of the '''index''' (a table of contents) to the application record.


The interim order is in force from the moment of the judge or master’s decision and remains in force until another interim order is made or until the family law case is resolved.
You must complete these two steps (filing the application record and sending the index to the other party) by 4 pm on the day '''one full business day before''' the hearing. (This means one full business day must pass in between these steps and the hearing day.)


==More information==
{| class="wikitable"
Much more information on this complicated topic is available on several websites, including:
|align="left"|'''Tip'''
The Family Law website from Legal Aid BC has step-by-step guides on preparing and responding to an interim application. The guides include [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/supreme-court/get-interim-family-order-supreme-court-if#5 instructions on how to prepare an application record].
|}


*The Justice Education Society’s “Court Tips for Parents” at [http://www.courttips.ca www.courttips.ca] has instructional videos on presenting a case in chambers.
===Step 6. Attend the hearing===
*The Vancouver Justice Access Centre's Self-Help and Information Services at [http://www.supremecourtselfhelp.bc.ca/ www.supremecourtselfhelp.bc.ca]. Also, see the [http://www.courts.gov.bc.ca/supreme_court Court’s home page] with a link to Court Services Online.
The court hearing will take place in Supreme Court '''chambers'''. This is a public courtroom where all interim applications set for a particular day are heard. The hearing might be before a judge. Or it might be before a '''master''', a judicial officer who can decide interim applications.
*The Legal Services Society’s Family Law in British Columbia website at [http://www.familylaw.lss.bc.ca www.familylaw.lss.bc.ca] —see the [http://www.familylaw.lss.bc.ca/guides/ self-help guides].
*The Justice Education Society at [http://www.justiceeducation.ca www.justiceeducation.ca]—click on “Self-Help”, then on “Guidebooks for Representing Yourself in Supreme court”.
*The wikibook ''JP Boyd on Family Law'', from Courthouse Libraries BC, has a helpful description of the [http://wiki.clicklaw.bc.ca/index.php/Interim_Applications_in_Family_Matters interim application process] and links to the applicable rules and court forms.


====The parties make their submissions====
You tell the judge or master what orders you’re asking for. The respondent explains why the court ''shouldn’t'' do as you ask.


[updated February 2017]
Neither party testifies during the hearing, nor can either party ask the other questions. The evidence is given to the court through the affidavits in the application record.


'''The above was last reviewed for accuracy by Janette Kovacs.'''
====The court’s decision====
----
After looking at the documents and listening to both parties’ submissions, the judge or master makes a decision. They may make all, some, or none of the orders the applicant is asking for.


{| class="wikitable"
|align="left"|'''Tip'''
The Supreme Court BC Online Help Guide from Justice Education Society has [https://www.supremecourtbc.ca/family/tips-for-parents videos on how to present your own case in chambers].
|}
===Step 7. The interim order is filed in court===
If either party has a lawyer, the lawyer usually prepares and files the written '''interim orde'''r made by the judge or master. If neither party has a lawyer, the successful party prepares and files the written order in court.
The order is in place from the moment the judge or master gives their decision. The order stays in place until the court makes another interim order on the same subject, or until the overall case is resolved by a trial or a settlement.
==Who can help==
===With more information===
The '''Family Law in BC website''' from Legal Aid BC has a step-by-step guide with instructions for preparing and responding to a Supreme Court interim application.
* [https://familylaw.lss.bc.ca/bc-legal-system/court-orders/get-order-bc/supreme-court/get-interim-family-order-supreme-court-if#0 Visit website]
The wikibook ''JP Boyd on Family Law'', hosted by Courthouse Libraries BC, describes how to make an interim application in Supreme Court. [[Interim_Applications_in_Family_Matters#Sample_timelines|It includes sample timelines]] for filing and serving the court documents.
* [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?|Visit website]]
===With your case===
Unbundling allows you to hire a lawyer for specific parts of your case or to coach you through the court process. '''Unbundled Legal Services''' lists family lawyers who offer these services.
* [http://unbundlinglaw.ca/ Visit website]
Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
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Latest revision as of 23:06, 30 April 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shelagh Kinney, Watson Goepel in March 2020.
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A person involved in a family law case may need to get a temporary court order — known as an interim order — to deal with short-term, important, or urgent issues. Learn the process for making an interim application in Supreme Court.

Eliaspls.png
”My kids live with my spouse, Mikki, most of the time. We set it up that way because of my work schedule. But I changed jobs a few months ago. I want to see the kids more. Mikki doesn’t agree, so I filled out some paperwork and took it to Supreme Court, where our divorce case is. A friend of mine gave Mikki a copy of the court documents. She filed something in reply, and we’re going to court in a month.”
– Elias, Langley, BC

What you should know

What an interim order is

Interim orders are temporary court orders made after a case has started but before it ends. They last until another interim order is made. Or, they can stay in place until the case is resolved by final agreement or an order made at trial.

Interim orders can also deal with urgent problems. They can help with:

  • stopping someone from dealing with family property
  • preventing the children from being taken out of town
  • deciding where the children will live
  • deciding if interim support should be paid by one party to help the other with expenses

A summary of the application process

The BC Supreme Court has rules that set out the process for applying for an interim order.

In a family law case, there are typically two people involved in an application: the person making it (the applicant) and the person replying to it (the respondent). They are the parties in the case.

Let’s assume you’re the applicant. You start the process by filling out a notice of application. Then, you file this form and some supporting documents in court. After that, you need to arrange to serve the documents on the respondent.

If the respondent doesn’t agree with any part of the application, they need to file an application response and supporting documents in court. Then they need to serve those materials on you.

One full day before the hearing, you must file some more material in court.

At the hearing, each party will explain why the order they’re asking for should or shouldn’t be made. The court will consider the evidence and the law and then make a decision. This is recorded in an interim order.

The steps in the application process

Step 1. Prepare the notice of application

The applicant — let’s say it’s you — starts the process by preparing a notice of application. The court has a specific form that must be used, form F31. This form tells the court what order you want and sets out the court date for the application hearing. It also explains the facts in support of the application and why the court should make that order.

You also prepare an affidavit in form F30 in support of your application. An affidavit is a legal document in which a person makes statements they swear are true. You may also need to prepare other supporting documents depending on the type of order you’re seeking.

Tip

You can download the notice of application from the BC government website. You can also find other court forms there. Completed samples of many forms are available at JP Boyd on Family Law.

Picking the hearing date

In the notice of application, you must set out the hearing date for the application. Except for urgent applications, the soonest an application can be heard is eight full business days from the date the application materials are sent to the other party. (Business days don’t include weekends and holidays, when court is closed.)

You get to pick the date of the hearing — unless the hearing will take two hours or longer. In that case, you must schedule the hearing date with the court registry staff.

Tip

In picking the hearing date, you should check with the court registry to find out what days the court hears interim applications in family law cases. Some court registries only hear these types of applications on certain days. It’s also a good idea to check dates with the other party or their lawyer. That way you can pick a date you both can attend.

Step 2. File the application in court

You must make three copies of the materials. Then, file the notice of application and affidavit in the court registry where your family law case is ongoing. There is a court filing fee.

Tip

If you can’t afford the Supreme Court filing fees, you can ask the court to waive them. The Family Law website from Legal Aid BC has a free step-by-step guide for getting an order to waive fees in Supreme Court.

Step 3. Serve the notice on the other party

You have to serve the notice of application and supporting documents on the other party. This can be done by ordinary service. This means delivering or leaving the documents with the other party. But it might also be possible to mail, fax, or email the documents. It all depends on what the other party put as their “address for service” in earlier documents.

The documents must be served on the other party at least eight full business days before the date set for the hearing.

Step 4. Wait for a response

The other party, the respondent, has five business days to respond from the time they were served with the notice of application. They can file an application response and a supporting affidavit and then serve you with them. The response says whether they agree or disagree with what you’re asking for.

You can then fill out a responding affidavit. In it, you reply to any new information in the other party's material.

Step 5. Prepare the application record

Before the hearing, you need to file an application record in court. This is a binder with copies of all the documents related to the interim application. There are specific requirements set out in the Supreme Court rules for how this material is organized.

As well, you must send the other party a copy of the index (a table of contents) to the application record.

You must complete these two steps (filing the application record and sending the index to the other party) by 4 pm on the day one full business day before the hearing. (This means one full business day must pass in between these steps and the hearing day.)

Tip

The Family Law website from Legal Aid BC has step-by-step guides on preparing and responding to an interim application. The guides include instructions on how to prepare an application record.

Step 6. Attend the hearing

The court hearing will take place in Supreme Court chambers. This is a public courtroom where all interim applications set for a particular day are heard. The hearing might be before a judge. Or it might be before a master, a judicial officer who can decide interim applications.

The parties make their submissions

You tell the judge or master what orders you’re asking for. The respondent explains why the court shouldn’t do as you ask.

Neither party testifies during the hearing, nor can either party ask the other questions. The evidence is given to the court through the affidavits in the application record.

The court’s decision

After looking at the documents and listening to both parties’ submissions, the judge or master makes a decision. They may make all, some, or none of the orders the applicant is asking for.

Tip

The Supreme Court BC Online Help Guide from Justice Education Society has videos on how to present your own case in chambers.

Step 7. The interim order is filed in court

If either party has a lawyer, the lawyer usually prepares and files the written interim order made by the judge or master. If neither party has a lawyer, the successful party prepares and files the written order in court.

The order is in place from the moment the judge or master gives their decision. The order stays in place until the court makes another interim order on the same subject, or until the overall case is resolved by a trial or a settlement.

Who can help

With more information

The Family Law in BC website from Legal Aid BC has a step-by-step guide with instructions for preparing and responding to a Supreme Court interim application.

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, describes how to make an interim application in Supreme Court. It includes sample timelines for filing and serving the court documents.

With your case

Unbundling allows you to hire a lawyer for specific parts of your case or to coach you through the court process. Unbundled Legal Services lists family lawyers who offer these services.

Other options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

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