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

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
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.  
While a family law case is in progress, the parties may need to get an “interim order” to deal with important or urgent issues. Learn the process for Supreme Court.


The forms listed in this script are available at [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms Supreme Court Family Rules Forms]. At the end of the script, other information sources with much more detail are listed.
==Understand the legal framework==


==What is an interim order in a family law case in the Supreme Court?==
===The purpose of an interim order in a family law case===
People involved in a family law case will often need an '''interim order''' after the case has begun but before it ends. Interim orders are temporary orders that last only 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.
The parties involved in a family law case will often need an '''interim order''' after the case has begun but before it ends. Interim orders are temporary orders that last only until another interim order is made, or until the case is fully resolved.  


==Applying for an interim order==
Interim orders can deal with urgent problems that can’t wait, such as stopping someone from disposing of property or stopping the children from being taken out of town. Interim orders can also deal with questions about how the family will function until the case is resolved, such as where the children will live and whether interim support should be paid by one party to help the other with expenses.
Rule 10-6 of the [http://www.bclaws.ca/Recon/document/ID/freeside/169_2009_00 Supreme Court Family Rules] describes how to apply for an interim order, called making an '''interim application'''. One person (the '''applicant''') starts the process by preparing a Notice of Application using Form F31, 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 show 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 they will need to decide the application.
===The process involved===
The British Columbia Supreme Court has [http://canlii.ca/t/8mcr rules] that set out the details of the court’s process. Family Rule 10-6 sets out how to make an '''interim application''' in a family law case.  


Unless the application is made giving without notice to the other person (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.
One person (the '''applicant''') starts the process by preparing a '''notice of application'''. They file this form and some supporting documents in the court, and then serve the documents on the other party. The material sets out the order the applicant is looking for, explains why the court should make that order, and gives the day the application will be heard.  


==Picking the hearing date==
If the other party wants to object to any part of the application, they must file a '''response''' in the court and serve those materials on the applicant.
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 8 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==
One full day before the hearing, the applicant must file some additional material in court.
The application respondent has five business days after the day of ordinary service to file their 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==
At the hearing, each party will explain why the order the applicant seeks should or shouldn’t be made. The court will make a decision. The decision is recorded in an '''interim order''' that remains in force until another interim order is made or until the overall case is resolved.
The applicant is allowed to prepare one more affidavit to respond to 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==
==The steps in the process==
The applicant must prepare an Application Record for the hearing. An Application Record is a binder with the following documents, separated by tabbed pages:
#the Notice of Application,
#the Application Response,
#all the affidavits that the applicant will show to the judge, listed in their Application plus any new affidavits prepared in response to the application respondent’s materials, and
#all the affidavits that the application respondent will show to the judge, listed in their 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.
===Step 1. Prepare the notice of application===
One person (the '''applicant''') starts the process by preparing a '''notice of application'''. The court has its own form that must be used, Supreme Court Form F31. This form sets out the order the applicant is looking for, explains why the court should make that order, and gives the day the application will be heard.


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 applicant also prepares an '''affidavit''', using Form F30. An affidavit is a legal document where a witness makes statements about facts they say are true. Depending on the type of order they’re seeking, the applicant may also need to prepare other supporting documents.  


The applicant and the application respondent should prepare exact copies of the Application Record for themselves. The application respondent will make their copy using the index that was sent by the applicant.
{| class="wikitable"
|align="left"|'''Tip'''
You can download the notice of application and affidavit forms, as well as other court forms, from the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/sup-family-forms BC government website].
|}


==The hearing==
====Picking the hearing date====
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.)
In the notice of application, the applicant must set the date when the application will be heard. Except for urgent applications, the soonest an application can be heard is '''eight business days''' from the date the application materials are sent to the other party. (Business days are days the court is open for business; they don’t include weekends and holidays.)  


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.
The applicant gets to pick the date 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.  


The applicant will start the hearing by describing the orders that they are 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.
{| class="wikitable"
|align="left"|'''Tip'''
In picking the hearing date, the applicant 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.
|}


When the applicant has finished, the application respondent will summarize their Application Response, the facts stated in the affidavits that explain why the court shouldn’t do as the applicant asks.
===Step 2. File the application in court===
The applicant files the notice of application and affidavit in the court registry where their family law case is ongoing. The applicant must make three copies of the material. There is a court filing fee.


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.
===Step 3. Serve the notice on the other party===
The applicant must '''serve''' the notice of application and supporting documents on the other party.  


The judge will consider only the facts stated in the affidavits. Neither the applicant nor the application respondent will testify during the hearing, and neither the applicant nor the application respondent can ask each other questions. All of the evidence is provided through the affidavits in the Application Record.
“Serving” means delivering or leaving the documents with them. This can be done by '''ordinary service''', which means the documents can be dropped off with the other party or sent by mail, fax or email, depending on what the other party put as their "address for service" in earlier documents filed in the court case.  


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


==The written order==
===Step 4. Wait for a response===
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.
The other party has '''five business days''' from the time they were served with the application to respond. They do this by filing a '''response''' and an affidavit in support in court and serving those materials on the applicant. The response says whether they agree or disagree with what the applicant is seeking.


The order is in force from the moment the judge or master gives their 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 applicant can complete a responding affidavit, responding to any new information in the other party's material.


==Summary==
===Step 5. Prepare the application record===
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 8 business days before the date set for the hearing.
Before the hearing, the applicant must 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 for how this material is organized.  


If the application respondent wants to object to any part of the application, they must file an Application Response and supporting affidavits in court and serve those materials on the applicant at least 5 business days after the date they were served with the applicant’s materials.
As well, the applicant must send the other party a copy of the '''index''' to the application record.


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.
The applicant 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.)


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.
{| class="wikitable"
|align="left"|'''Tip'''
The Family Law in BC website from Legal Services Society, the legal aid provider in BC, includes guides with step-by-step instructions on preparing and responding to an interim application. The instructions include how to prepare an [https://familylaw.lss.bc.ca/guides/interim/cantAgree/supreme/apply/step6.php application record]. Visit [https://familylaw.lss.bc.ca/guides/interim/cantAgree/supreme/index.php familylaw.lss.bc.ca].
|}


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.
===Step 6. Attend the hearing===
The hearing will take place in '''chambers''', a public courtroom where all interim applications set for a particular day are heard. The hearing might be before a judge or a '''master''', a judicial officer who can decide interim applications.
 
On the day of the hearing, the parties go to the chambers courtroom at 9:45 am 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 parties (or their lawyers) approach the judge or master and introduce themselves.
 
====The parties make their submissions====
The applicant describes the orders they are asking for (listed in the notice of application), and outlines the facts (stated in their affidavit) that explain why the court should make those orders.
 
The other party outlines the facts (stated in their affidavit) that explain why the court shouldn’t do as the applicant asks.
 
Neither party testifies during the hearing, and neither can ask each other questions. All of the evidence is provided through the affidavits in the application record.
 
====The court’s decision====
After reviewing the documents and listening to the parties’ arguments, the judge or master makes a decision. They may make all, some or none of the orders the applicant is asking for.
 
===Step 7. The interim order is filed in court===
If a lawyer is representing either party, the lawyer usually prepares the written '''interim order''' from the decision of the judge or master, and files it in court. If neither party has a lawyer, the successful party prepares and files the written order.
 
The order is in force from the moment the judge or master gives their decision. The order remains in force until the court makes another interim order on the same subject or until the overall case is resolved by a trial or a settlement.
 
==Get help==
 
===With more information===
The '''Family Law in BC website''' from Legal Services Society, the legal aid provider in BC, includes guides with step-by-step instructions on preparing and responding to an interim application.
:Web: [https://familylaw.lss.bc.ca/guides/interim/cantAgree/supreme/index.php familylaw.lss.bc.ca]
 
The '''Supreme Court BC Online Help Guide''' from Justice Education Society has videos on how to present your own case in chambers.
:Web: [https://www.supremecourtbc.ca/family/tips-for-parents supremecourtbc.ca/family/tips-for-parents]
 
The wikibook '''''JP Boyd on Family Law''''', hosted by Courthouse Libraries BC, describes the interim application process.
:Web: [https://wiki.clicklaw.bc.ca/index.php?title=Interim_Applications_in_Family_Matters wiki.clicklaw.bc.ca]


==More information==
*The other Dial-A-Law scripts in this [http://www.cbabc.org/For-the-Public/Dial-A-Law/Scripts/Family-Law?_ga=2.25724861.1465218859.1540827756-1141987961.1503074809 family law series]
*The Justice Education Society’s [https://www.supremecourtbc.ca/family/tips-for-parents Court Tips for Parents] has videos on presenting a case in chambers.
*The Vancouver Justice Access Centre's Self-Help and Information Services [http://www.supremecourtselfhelp.bc.ca/ website]
*The [http://www.courts.gov.bc.ca/supreme_court Supreme Court home page] and [https://justice.gov.bc.ca/cso/index.do Court Services Online]
*The Legal Services Society [http://www.familylaw.lss.bc.ca/ Family Law website] has [http://www.familylaw.lss.bc.ca/guides self-help guides].
*The [http://www.justiceeducation.ca/ Justice Education Society]
*''[http://wiki.clicklaw.bc.ca/index.php/JP_Boyd_on_Family_Law JP Boyd on Family Law]'' describes the [http://wiki.clicklaw.bc.ca/index.php/Interim_Applications_in_Family_Matters interim application process].




[updated October 2018]
[updated October 2018]


'''The above was last reviewed for accuracy by Greta Airhart and edited by John Blois.'''
'''The above was last reviewed for legal accuracy by [https://findlaygunnellsandor.com/c-j-greta-airhart/ Greta Airhart], Findlay Gunnell Sandor.'''
 
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Revision as of 05:16, 13 February 2019

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While a family law case is in progress, the parties may need to get an “interim order” to deal with important or urgent issues. Learn the process for Supreme Court.

Understand the legal framework

The purpose of an interim order in a family law case

The parties involved in a family law case will often need an interim order after the case has begun but before it ends. Interim orders are temporary orders that last only until another interim order is made, or until the case is fully resolved.

Interim orders can deal with urgent problems that can’t wait, such as stopping someone from disposing of property or stopping the children from being taken out of town. Interim orders can also deal with questions about how the family will function until the case is resolved, such as where the children will live and whether interim support should be paid by one party to help the other with expenses.

The process involved

The British Columbia Supreme Court has rules that set out the details of the court’s process. Family Rule 10-6 sets out how to make an interim application in a family law case.

One person (the applicant) starts the process by preparing a notice of application. They file this form and some supporting documents in the court, and then serve the documents on the other party. The material sets out the order the applicant is looking for, explains why the court should make that order, and gives the day the application will be heard.

If the other party wants to object to any part of the application, they must file a response in the court and serve those materials on the applicant.

One full day before the hearing, the applicant must file some additional material in court.

At the hearing, each party will explain why the order the applicant seeks should or shouldn’t be made. The court will make a decision. The decision is recorded in an interim order that remains in force until another interim order is made or until the overall case is resolved.

The steps in the process

Step 1. Prepare the notice of application

One person (the applicant) starts the process by preparing a notice of application. The court has its own form that must be used, Supreme Court Form F31. This form sets out the order the applicant is looking for, explains why the court should make that order, and gives the day the application will be heard.

The applicant also prepares an affidavit, using Form F30. An affidavit is a legal document where a witness makes statements about facts they say are true. Depending on the type of order they’re seeking, the applicant may also need to prepare other supporting documents.

Tip

You can download the notice of application and affidavit forms, as well as other court forms, from the BC government website.

Picking the hearing date

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

The applicant gets to pick the date 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.

Tip

In picking the hearing date, the applicant 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.

Step 2. File the application in court

The applicant files the notice of application and affidavit in the court registry where their family law case is ongoing. The applicant must make three copies of the material. There is a court filing fee.

Step 3. Serve the notice on the other party

The applicant must serve the notice of application and supporting documents on the other party.

“Serving” means delivering or leaving the documents with them. This can be done by ordinary service, which means the documents can be dropped off with the other party or sent by mail, fax or email, depending on what the other party put as their "address for service" in earlier documents filed in the court case.

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

Step 4. Wait for a response

The other party has five business days from the time they were served with the application to respond. They do this by filing a response and an affidavit in support in court and serving those materials on the applicant. The response says whether they agree or disagree with what the applicant is seeking.

The applicant can complete a responding affidavit, responding to any new information in the other party's material.

Step 5. Prepare the application record

Before the hearing, the applicant must 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 for how this material is organized.

As well, the applicant must send the other party a copy of the index to the application record.

The applicant 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 in BC website from Legal Services Society, the legal aid provider in BC, includes guides with step-by-step instructions on preparing and responding to an interim application. The instructions include how to prepare an application record. Visit familylaw.lss.bc.ca.

Step 6. Attend the hearing

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

On the day of the hearing, the parties go to the chambers courtroom at 9:45 am 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 parties (or their lawyers) approach the judge or master and introduce themselves.

The parties make their submissions

The applicant describes the orders they are asking for (listed in the notice of application), and outlines the facts (stated in their affidavit) that explain why the court should make those orders.

The other party outlines the facts (stated in their affidavit) that explain why the court shouldn’t do as the applicant asks.

Neither party testifies during the hearing, and neither can ask each other questions. All of the evidence is provided through the affidavits in the application record.

The court’s decision

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

Step 7. The interim order is filed in court

If a lawyer is representing either party, the lawyer usually prepares the written interim order from the decision of the judge or master, and files it in court. If neither party has a lawyer, the successful party prepares and files the written order.

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

Get help

With more information

The Family Law in BC website from Legal Services Society, the legal aid provider in BC, includes guides with step-by-step instructions on preparing and responding to an interim application.

Web: familylaw.lss.bc.ca

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

Web: supremecourtbc.ca/family/tips-for-parents

The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, describes the interim application process.

Web: wiki.clicklaw.bc.ca


[updated October 2018]

The above was last reviewed for legal accuracy by Greta Airhart, Findlay Gunnell Sandor.

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