How Do I Reply to an Interim Application in a Family Law Matter in the Supreme Court?

From Clicklaw Wikibooks

Notice of the applicationA request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

You will be entitled to notice of almost every application the other side, the applicantA party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.", intends to bring to court. The most common exceptions to this general rule are when:

  • the applicant makes an application without notice to you when the application is urgent (called an ex parte or without notice application),
  • the applicant is applying for permission to compress the usual timelines for the hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." of his or her application (called a short leave application),
  • the applicant is asking to be exempted from the requirement that a judicial case conference be held before the first interim applicationAn application, also called in "interlocutory application," made after the start of a court proceeding but before its conclusion, usually for temporary relief pending the final resolution of the proceeding at trial or by settlement. In family law, interim applications are useful to determine issues like where the children will live, who will pay child support and whether spousal support should be paid on a rough and ready basis. See "application" and "interim order.", or
  • you are the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim." and you haven't filed your defenceA reply, a rebuttal, an answer to a court proceeding or an application; a statement as to why a particular claim or application should not succeed. to the applicant's Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief.".

When the applicant is required to give you notice of his or her application, the applicant will send you a copy of his or her Notice of ApplicationA legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief." and any new affidavits the applicant will rely on at the hearing. These documents are to be sent to your address for serviceThe address at which a party to a court proceeding agrees to accept delivery of legal documents. An address for service must be a proper street address within British Columbia; additional addresses for service may include postal addresses, fax numbers, and email addresses., which may include your fax number for service or your email address for service if you've given one, at least eight business daysA method of calculating time under which the days for a legal deadline are determined based on when the court is open for business, excluding weekends and holidays. See "calendar days" and "clear days." before the date of the hearing.

The Notice of Application will tell you:

  • the orders that the applicant will be asking the court to make,
  • the facts the applicant says support the application,
  • a summary of the applicant's argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument. in favour of the application,
  • the rules, acts or regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no right to a say in how or what regulations are imposed by government. See "act." the applicant will be relying on, and
  • the affidavits the applicant will be using to argue the application.

The affidavit ought to tell you why the applicant wants the court to make the orders he or she is asking for and state the facts that support the making of those orders.

Replying to the application

In most cases, to replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut." to an application you will prepare and file an Application ResponseA legal document required by the Supreme Court Family Rules to reply to a Notice of Application, which sets out the relief agreed to and opposed by the application respondent and the facts in support of that position. See "interim application." in Form F32 and at least one new affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.". The forms are online. See the Supreme Court Forms section.

Your Application Response tells the applicant and the court:

  • the orders that you agree to the court making,
  • the orders that you intend to oppose,
  • the orders that you might agree to if certain conditions are met,
  • your understanding of the facts that relate to the application,
  • a summary of your argument against the application,
  • the rules, acts or regulations you'll be relying on, and
  • the affidavits that you will be relying on at the hearing of the application.

You should do two things in any new affidavit you prepare in replying to an application:

  1. you should respond to any important statements in the applicant's affidavit that you disagree with or think are inaccurate, and
  2. you should tell the court about the facts that support your position on the application.

You must send two copies of your filed materials to the applicant at least five business days after you were served with the application materials.

The applicant's reply

The applicant may decide to prepare a new affidavit to reply to something you've said in your affidavit. The applicant must give you a copy of any new affidavits by 4:00pm on the business day that is one full business day before the hearing.

You do not have an automatic right to serve an affidavit of your own in reply to this new affidavit. You can prepare another affidavit if you want, but be prepared for the judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal. or masterA provincially-appointed judicial official with limited jurisdiction usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge," and "jurisdiction." hearing the application to refuse to admit your affidavit.

Application records

The Application Record is a three-ring binder that contains all of the application materials, with an index and separated by tabs, that is assembled by the applicant. The Application Record is prepared for the benefit of the judge or master hearing the application.

The applicant will give you his or her index to the Application Record by 4:00pm on the business day that is one full business day before the hearing. Make up your own Application Record using the applicant's index. This will make sure that you, the applicant and the judge are all on the same page when you're referring to the materials in the Application Record.

The rules

  • Rule 6-2: How to serve documents by ordinary serviceSending legal documents to a party at that party's "address for service," usually by mail, fax or email. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service."
  • Rule 7-1: The JCC rules
  • Rule 10-4: The rule about affidavits
  • Rule 10-5: Directions for bringing interim applications
  • Rule 10-6: The usual application procedure

For more information

You can find a more complete discussion of the interim application process and the different timelines and deadlines in the chapter Resolving Family Law Problems in Court within the section Interim Applications in Family Matters.


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