Interim Applications in Family Matters

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Once a 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. If the family matter is 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 less formal.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Provincial Court and in the Supreme 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 rules of court, the Divorce Act, and the Family Law Act. Interim orders under the Divorce Act concern child support, spousal support, and children's parenting arrangements. Interim orders under the Family Law Act concern these subjects as well as orders about the protection of people, orders about the protection and use of property, 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?
  • Who should be able to live in the family home?
  • Who should be responsible for paying debts or the expenses that are necessary to maintain the family home pending trial?
  • Should family property and other property be frozen until it is divided by a final order or agreement?
  • Is a personal protection order necessary?

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

Restraining orders are orders that require someone to not do a specific thing, such as orders that someone:

  • not dispose of property,
  • not rack up debt,
  • not talk to the children about the issues in the court proceeding,
  • not make negative comments to the children about the other parent, or
  • not go to a particular place.

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're a kind of restraining order and also require someone to not do a specific thing. 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.

Conduct orders are designed to manage the behaviour of someone who is a party to a court proceeding. Some conduct orders look an awful lot like restraining orders, like conduct orders restricting how the parties communicate with each other. Conduct orders are available under Division 5 of Part 10 of the Family Law Act and include orders that:

  • one or more parties must 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, or
  • 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.

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. At either level of court, 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 Financial Statements, Lists of Documents and Interrogatories,
  • authorize the preparation of a views of the child report or a parenting assessment,
  • fix dates for conferences, like a trial management conferences or a settlement conferences; and,
  • set the dates for the trial of the court proceeding.

Pretty much anything can be dealt with at an interim application except for orders that are final in nature, like an order for the parties' divorce or an order dividing family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or the judge's decision is handed down following a trial.

Interim applications in a nutshell

The process for making or defending interim applications, whether you're in the Provincial Court, the Supreme Court or the Court of Appeal, is a miniature version of the process for starting or defending a court proceeding, and works more or less like this:

  • The person making the application, the applicant, prepares the court documents that start the application and delivers those documents to the person who will be defending the application, the application respondent or the respondent.
  • The application respondent has a certain amount of time to respond to the application, and does so by preparing a different set of court documents and delivering those to the applicant.
  • The applicant may prepare a reply to the application respondent's response.
  • On the date of the hearing, the applicant and the application respondent go to court. The applicant argues why the judge should make the interim orders they are asking for, the application respondent explains why the court shouldn't make those orders, and the judge or master who hears the application makes a decision resolving the application.
  • Sometimes the judge or master makes a decision the same day they hear the application, but sometimes the judge or master will want to think about things and will release a written decision days, weeks or months later.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules provide all the details about how interim applications are set for hearing and heard. It is very important to understand how the rules about interim applications work.

The Provincial Court

The information in this section does not apply to family law cases in the Victoria or Surrey registries of the Provincial Court. Those cases are managed under the Early Resolution Model, which is governed by special rules. For more information about the Early Resolution Model, read the resources published by the BC Government.

At the other Provincial Court registry locations, interim orders can typically be sought after a court proceeding has been started. This will mean an Application About a Family Law Matter in Form 3 is probably filed, as well as the Reply to an Application About a Family Law Matter in Form 6 and most likely Financial Statements as well.

The family management conference will likely be the first time the parties meet in front of a judge (or family justice manager), and offer the first opportunity for interim orders. The new Provincial Court Family Rules encourage parties to resolve their issues in these initial conferences, including what interim support payments should look like and what parenting time schedules should be followed even if a final resolution will need to wait for a full trial. When interim issues are not resolved after the family management conference, the judge or family justice manager usually books the parties for a family settlement conference or even another family management conference.

Still, there are times when an urgent or unexpected need arises and an interim application is required outside of the usual conferences. The Provincial Court Family Rules has set out pathways, and special forms, for the common circumstances when an interim application is needed:

The person bringing the application, who we'll call the applicant, must file their form, and then serve a copy of the application on all of the other parties to the court proceeding, 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 in the description of Form 11, there are some case management orders that do not really affect the other party, and those applications are routinely allowed without notice to the other party.

Under some circumstances, however, 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 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 an Application About a Protection Order in Form 12 can select the option to have it heard without notice. A 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 in Forms 15, 16, and 29 can be made in the right circumstances where there could be serious consequences. These forms should be filed with the Application for Case Management Order Without Notice or Attendance in Form 11 for a judge to consider.

Applications in the Provincial Court are usually heard with oral evidence — evidence given by witnesses who are present in the courtroom — rather than with written evidence in the form of affidavits. (This is a big difference from how applications are dealt with in the Supreme Court, where evidence is usually given by affidavit). Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges like the convenience of having the evidence written out in affidavits.


Family Justice registries

The courthouses in Kelowna, Nanaimo, and Vancouver are Family Justice registries. In these registries, the parties are required to take participate in an individual needs assessment with a family justice counsellor, take a parenting course, and then attend a family management conference together where a judge or family justice manager will try to help the parties resolve their issues.

The idea behind this rule is good. People should try to resolve court proceedings without going to trial, and even if the dispute goes on these early meetings and conferences can point parties to important services and programs in their community that can help with things like parenting, employment, housing, and social assistance. However, there are times when having to meet with a family justice counsellor for a needs assessment or having a family management conference would make too much of a delay. See the note about exceptional procedure, above.

Parenting Education registries

All registries that are not Family Justice or Early Resolution registries are Parenting Education registries where the parties are required to complete a parenting course if there are claims relating to children under age 19, namely:

  • guardianship,
  • parenting children,
  • contact with a child, or
  • child support.

This course usually needs to be completed before a family management conference is scheduled, and before an interim order can be requested or applied for. There are some exceptions to this requirement and Rule 100 of the Provincial Court Family Rules explains these exceptions. If there is a consent order that resolves all the issues regarding any children, if a party doesn't speak the language the program is offered in (or has literacy challenges), or if a party cannot access the online program, an exemption can be requested using the Notice of Exemption from Parenting Education Program in Form 20.

Defending an application

If you have been served with an interim application, you may answer the application with a Written Response to Application in Form 19. 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

On the date set for hearing, 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!

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 centre 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 Courtroom Protocol. You may wish to review How Do I Conduct Myself in Court at an Application? in particular.

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.

The Supreme Court

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children, or to take a step necessary to move the court proceeding closer to trial. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, to freeze the family property, or for the payment of family debt, like a mortgage for example.

The main Supreme Court Family Rules about the interim application process are:

  • Rule 1-1: Definitions
  • Rule 5-1: Financial disclosure
  • Rule 6-2: Ordinary service
  • Rule 7-1: Judicial case conferences
  • Part 10: Interim applications and chambers procedure
  • Rule 10-2: Where applications are heard
  • Rule 10-3: Chambers procedure
  • Rule 10-4: Affidavits
  • Rule 10-6: Normal application process
  • Rule 10-9: Urgent applications
  • Rule 15-1: Court orders
  • Rule 16-1: Costs
  • Rule 21-2: Time

For a summary of the application process, see How Do I Make an Interim Application in a Family Law Matter in the Supreme Court? in the Helpful Guides & Common Questions part of this resource. Links to and examples of the court forms used in the process can be found in Supreme Court Forms & Examples.

When an application can be brought

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and applications can be brought earlier than this — sometimes on the same day that the court proceeding is started! — when there is a very urgent problem that needs to be resolved immediately. This might be the case if a parent is threatening to leave the country with the children or family violence is present.

Rule 7-1(3) of the Supreme Court Family Rules sets out the exceptions to the requirement that a judicial case conference is held before any applications can be brought:

  1. when an application is being made for an order restraining either or both parties from disposing of family property;
  2. when the order will be made with the agreement of both parties, called a consent order; or,
  3. when the application is being made without notice being given to the other side, sometimes called an ex parte application.

If you must bring an application before the judicial case conference but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the judicial case conference under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the judicial case conference. Once the first judicial case conference has been held, interim applications can usually be made at any time.

Judicial case conferences are discussed in more detail in the Case Conferences section of this chapter.

Making an application

To start an interim application, the person making the application, the applicant, must prepare a Notice of Application in Form F31 and an affidavit in support of the application. Unless the application is being brought without notice to the other side, the application respondent, the applicant must deliver these documents to the other party's address for service by ordinary service under Rule 6-2. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

The Notice of Application and any supporting affidavits must be served on the application respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the application respondent. The timelines for interim applications are discussed in more detail below.

Making an application without notice

Applications are sometimes made without letting the other side know about the application, called an ex parte application or a without notice application. This is very unusual and is usually reserved for extreme circumstances in which:

  1. you can't find the application respondent to let them know about the application;
  2. the problem is very urgent and there isn't enough time to let the application respondent know about, or respond to, the application; or,
  3. you are afraid that the application respondent will harm someone or something if they find out about the application you're making.

Even if you go to court and get an order without giving notice to the other party, you will need to serve the order along with the Notice of Application and supporting documents on the other party after the order has been made. The other side is always entitled to know about any orders that have been made and why they have been made. It's also important to know that if the party disagrees with an order that was made ex parte, they are entitled to make their own application to the court to have the order set aside.

The Notice of Application

The Notice of Application describes:

  1. the orders and declarations you are asking for, called the relief you're asking for;
  2. the facts supporting the application;
  3. the legal grounds on which the application is made, meaning the specific rules of the Supreme Court Family Rules, the specific sections of any legislation, or the names of any case law that you are relying on in support of your application;
  4. the affidavits or other evidence you are relying on in support of your application;
  5. the amount of time you think it will take for the application to be heard; and,
  6. the date you've picked for the hearing of the application.

The form you must use is Form F31, which you can download in an editable format in the Supreme Court Forms & Examples part of this resource. The cost to file an application is currently $80.00.

Supporting affidavits

An affidavit is a written summary of the facts and information that are relevant to an application, given under oath or affirmation.

The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank), those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in the Supreme Court Forms & Examples part of this resource.

The process for drafting affidavits and the rules about the content of affidavits are discussed in How Do I Prepare an Affidavit?. It's located in the Helpful Guides & Common Questions part of this resource.

Defending an application

You must respond to an interim application if you disagree with any of the orders the applicant is asking for. If you agree with all of the orders sought by the applicant, you don't need to do a thing. For a summary of this process, see How Do I Reply to an Interim Application in a Family Law Matter in the Supreme Court?. It's located in the Helpful Guides & Common Questions part of this resource.

To respond to an interim application, you must prepare a court form called an Application Response in Form F32 and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in How Do I Personally Serve Someone with Legal Documents?, in the Helpful Guides & Common Questions part of this resource.

Making a cross-application

After being served with a Notice of Application, you can file an application of your own for whatever interim orders you think are helpful. Remember that when the hearing of the applicant's application rolls around, the only person asking for any orders is the applicant. If you think the court should make any orders other than those the applicant is asking for, you need to apply for those orders on your own.

You can make this application, called a cross-application, by Notice of Application, the same form used by the applicant. Depending on the circumstances and the timing of the cross-application, people will often agree to have the two applications heard at the same time.

The Application Response

The Application Response describes:

  1. the orders and declarations that the applicant is asking for that you agree with;
  2. the orders and declarations you oppose;
  3. the orders and declarations that you neither agree with nor oppose;
  4. the facts supporting your position;
  5. the legal grounds on which you oppose any orders or declarations, meaning the specific rules of the Supreme Court Family Rules, the specific sections of any legislation, or the names of any case law that you're relying on in opposing the application;
  6. the affidavits or other evidence that you're relying on in opposing the application; and,
  7. the amount of time you think it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in the Supreme Court Forms & Examples part of this resource. There is no fee to file an application response.

Supporting affidavits

An affidavit is a written summary of the facts and information that are relevant to an application, and an application respondent's opposition to an application, given under oath or affirmation.

The affidavits filed with the Application Response should describe the important facts that explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in the Supreme Court Forms & Examples part of this resource.

The process for drafting affidavits and the rules about the content of affidavits are discussed in How Do I Prepare an Affidavit?. It's located in the Helpful Guides & Common Questions part of this resource.

Replying to the Application Response

The applicant is allowed to prepare an affidavit in reply to the affidavits provided by the application respondent. This new affidavit must be limited to talking about any new issues raised in the Application Response or the affidavits filed by the application respondent; it is not an opportunity to talk about things that should have been discussed in the affidavits the applicant served with their Notice of Application.

The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00 pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the application respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the rules of court don't give an application respondent the right to file an affidavit in reply to the applicant's affidavit in reply to their affidavit, you shouldn't count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.

Time estimates

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the trial coordinator at the court registry, and a hearing date may not be available for several weeks or months. Applications like these are likely to be the only case that the master or judge is scheduled to deal with.

Applications that will take less than two hours are heard on a court day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent. Applications like these will be one of many applications that the master or judge will have to deal with. (In busy courthouses like New Westminster and Vancouver there will be 20 to 40 applications waiting to be heard on a typical court day.) The less time an application is expected to take, the more likely the application is to be heard sooner rather than later on the day of hearing, or, in fact, to be heard at all. The court clerk will generally sort the applications in order of the time estimates, so that a five-minute application will be heard fairly quickly, while a 90-minute application might not be heard until much later in the day or may even be postponed to another day if there isn't enough time.

For applications expected to take less than two hours to be heard, it can sometimes be very tempting to low-ball a time estimate in order to increase your application's chances of getting heard. I completely understand the temptation. However, some masters and judges are very strict in holding people to their time estimates. It is not uncommon for a master or judge to cut someone off when they've exhausted their time estimate and let them continue their application after all the other applications scheduled for that day have been finished. Try to be as accurate with your time estimate as you can!

The Application Record

The applicant must prepare an Application Record for the application. An Application Record is a binder with all of the documents relating to the application plus an index, that is prepared for the benefit of the master or judge who is hearing the application. When both parties have an application scheduled to be heard on the same day, they are required to cooperate and prepare a joint Application Record.

The applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00 pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the applicant will be asking the court to hear. The applicant must serve a copy of the index of the Record on the application respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your record after the deadline of 4:00 pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under Rule 10-6(14)(a), the materials in the Application Record need to be "securely bound," which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do. (I once saw an Application Record that was "securely bound" by a couple of hex bolts that had been run through the left-hand margin!) The contents of the Application Record are listed in Rule 10-6(14)(b) and should be put into the binder, separated by tabs, in the following order:

  1. the index to the Application Record;
  2. the Notice of Application — Tab 1;
  3. the Response to Application — Tab 2; and,
  4. the affidavits both parties will rely on at the hearing, each separated by a tab — Tab 3, Tab 4, and so on.

(A "tab" is a piece of heavier paper with a little rectangular bit that sticks out on the right-hand side with a number written on it. They might be called tab dividers or index dividers, and are sold by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Here's a picture of what we're talking about:

Avery sells a table of contents divider that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

After these documents, Rule 10-6(14)(c) says that Application Records can also include things like written arguments, a list of the cases the applicant will be relying on, and a draft of the order sought. Under Rule 10-6(14)(d), certain things are cannot be included in the Application Record:

  1. affidavits of service;
  2. copies of legislation, cases and articles; and,
  3. documents other than those Rule 10-6(14)(b) and (c) unless they're included with everyone's agreement.

The Supreme Court's Administrative Notice 14 explains the information the cover page to the Application Record should include:

  1. the court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents;
  2. the title of the document, usually just "Application Record";
  3. the claimant's address for delivery, telephone number, fax number, if any, and email;
  4. the respondent's address for delivery, telephone number, fax number, and email; and,
  5. the name of the party filing the Application Record, and the place, date, and time of the hearing, and the time estimate for the hearing.

Administrative Notice 14 provides a helpful example of an acceptable cover page.

The hearing

On the date set for hearing, show up at court at the appointed time. It's especially important for the application respondent to show up, because if they don't the court may carry on and hear the application in absence of the application respondent and make the orders requested by the applicant.

Interim applications are heard in courtrooms referred to as chambers, because a long time ago these applications were heard in the judge's personal office, called the judge's "chambers." The chambers courtroom will open at 9:45 am. Everyone who is going to be heard that day will form a line up to the front of the courtroom and check in with the court clerk, identifying themselves by their names and their number on the chambers list. The chambers list will be posted somewhere outside the courtroom, and another copy will usually be available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the chambers lists are posted online for that day only on Court Services Online under the heading "Supreme Chamber List."

The master or judge will enter the courtroom at 10:00 am and will expect to begin hearing applications right away. Don't forget to stand, if you can, when the master or judge enters the courtroom! The court clerk will call each application by saying its number on the chambers list and the last names of the people involved.

When each case is called by the court clerk, the parties walk up to the front of the court and identify themselves to the master or judge. For example, "I am Upphar Singh, and this is my application" or "I am Lucy Chiu, and I am responding to the application." 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 applicant will address the master or judge first and present their case. The applicant will usually explain:

  1. the orders they are asking the mater or judge to make;
  2. why the judge can make the orders the applicant is asking for, usually by talking about the Rule of Court or the section of the legislation that lets the master or judge make the orders; and,
  3. the facts stated in the affidavits filed with the application that explain why the application has been made and why the master or judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

  1. which orders the application respondent agrees to and which orders the application respondent might agree to on conditions;
  2. which orders the application respondent opposes; and,
  3. the facts stated in the affidavits filed with the application that explain why the master or judge shouldn't make the orders the applicant is asking for.

The applicant will then have a chance to briefly answer the application respondent's argument. The application respondent may have the opportunity to address the applicant's answer, but not every master or judge will permit this. As well, the master or judge may ask the applicant and application respondent questions during their presentations to clarify things.

After the master or judge has heard everyone's arguments, the master or judge will give their decision. Sometimes the master or judge will ask the parties to come back later for the decision. This called a reserved decision and can take days, weeks, or even months to be provided by the master or judge.

After the hearing

It is usually the job of the applicant's lawyer to turn whatever the master or judge has decided into a written order. If the applicant doesn't have a lawyer, the lawyer for the application respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and "enter" the order.

The registry staff will enter the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the "official" order of the court, the order takes effect, and is binding on all of the parties, from the moment the master or judge makes the order. Each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

Timelines

The rules about the timelines for chambers applications can be complicated and may change depending on whether the application is for an interim order, a final order, or an order changing a final order. It's important to read the rules about chambers applications very carefully!

Making an application

The applicant must file and serve the Notice of Application and supporting materials:

  • For interim applications, within eight business days of the date picked for the hearing.
  • For summary trial applications, within 12 business days of the hearing.
  • For applications to change a final order, within 21 business days of the hearing.

Replying to an application

The application respondent must file and serve the Application Response and supporting materials:

  • For interim applications, within five business days of being served with the Notice of Application.
  • For summary trial applications, within eight business days of being served.
  • For applications to change a final order, within 14 business days of being served.

Responding to an application response

The applicant must file and serve any new supporting materials, usually limited to new affidavits:

  • By 4:00 pm on the business day that is one full business day before the hearing date.

Application records

The applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the application respondent:

  • By 4:00 pm on the business day that is one full business day before the hearing date.

Sample timelines

In this sample timeline for an ordinary interim application, the hearing is on Friday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by Rule 10-6 of the Supreme Court Family Rules; nothing stops you from agreeing to a more generous set of due dates.

Monday Tuesday Wednesday Thursday Friday

Applicant files and serves application materials on the application respondent.
 
First business day after service. Second business day after service. Third business day after service. Fourth business day after service.
Fifth business day after service.
 
Application respondent files and serves reply materials.
Sixth business day after service.
Seventh business day after service.
 
Applicant files and serves responding affidavits, files Application Record, and serves Application Record index by 4:00 pm.
 
Eighth business day after service.
 
One business day before the date of the hearing.
DAY OF
HEARING

In this example, the application respondent's materials are due on Monday of the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record, and serve the Application Record index on the application respondent by 4:00 pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the applicant serves the interim application materials and the date of the hearing; all of the steps after the holiday get bumped back by one day.

Monday Tuesday Wednesday Thursday Friday

Applicant files and serves application materials on the application respondent.
 
First business day after service. Second business day after service. Third business day after service. Fourth business day after service.
HOLIDAY. Fifth business day after service.
 
Application respondent files and serves reply materials.
Sixth business day after service.
Seventh business day after service.
 
Applicant files and serves responding affidavits, files Application Record, and serves Application Record index by 4:00 pm.
 
Eighth business day after service.
 
One business day before the date of the hearing.

DAY OF
HEARING.

 

A comment about courtesy

The Supreme Court Family Rules allow an applicant to simply set the hearing date without consulting an application respondent. Although this gives the applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the application respondent, you can expect the application respondent to show up on the hearing date and ask the court for a delay to your application. This is called an adjournment.

If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again at some point in the future.

It can be tough to call your ex — or their lawyer — to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on the date of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that. Setting deadlines for things like this is why the rules exist in the first place.

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 orders. Check out Supreme Court Orders and Provincial Court Orders.

Parenting children

When making the first application about parenting arrangements and contact under the Family Law Act or the Divorce Act, important facts usually include:

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

Changing orders about parenting children

If the application is to change an order about the care of the children, the important facts will also include any facts that address the two-part legal test that must be met to change an order, namely What change in the child's needs or circumstances has happened since the original order was made? and How has this change affected the best interests of the child? Other important facts might include:

  1. how the original order has worked out;
  2. if the parents followed the terms of the order; and,
  3. if the order met the children's needs, and, if not, why not.

Changing agreements 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:

  1. how the agreement has worked out;
  2. if the parents followed the terms of the agreement; and,
  3. 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

Applications about child support typically require that each parent cough up certain documents in order to establish their income, in addition to a sworn 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, and 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:

  1. each person's present income;
  2. the children's current ages, and any other facts that are relevant to the children's continuing entitlement to receive child support; and,
  3. 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

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.

Personal 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 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
    1. a description of the dynamics of the parties' relationship, including whether it has stayed the same or changed over time,
    2. 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
    3. 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
    1. photographs of any injuries or damage to property caused by the other party,
    2. harassing emails or texts sent by the other party, and
    3. evidence from other people who have witnessed or overheard the abusive or controlling behaviours of the other party.

Property protection orders

The court can also make orders intended to protect property from being damaged, sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section Protecting Property and Debt, in the chapter, Property and Debt.

When making an application for an order restraining the other party from damaging property, selling property, transferring property, using property as collateral for loan, or otherwise dealing with property you have an interest in, important facts will usually include:

  1. the date when you began living together, your date of marriage, if you got married, and the date you separated;
  2. the names, birth dates, and ages of your children, if any;
  3. the ages and occupation of each party;
  4. any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation;
  5. a description of the family's financial circumstances, including a list of the property and debts you know about; and,
  6. a description of the reasons you are concerned about the other damaging property, selling property, transferring property, using property as collateral for loan, or otherwise dealing with property you have an interest in.

Resources and links

Legislation

Resources

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 18 April 2020.


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