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Interim Applications in Family Matters (view source)

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Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.
Interim applications are applications for temporary, short-term orders made before trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement.


Interim orders can be very useful to establish some 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, the judge had this to say about interim orders:
Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)'', 2006 BCSC 1921, a BC Supreme Court case, the judge had this to say about interim orders:


<blockquote>"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.</blockquote>
<blockquote>"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.</blockquote>
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<blockquote>"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."</blockquote>
<blockquote>"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."</blockquote>


===The Subjects of Interim Applications===
===The subjects 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, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:
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, and sometimes to get some support flowing. Interim applications are most often made to answer questions like these:
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Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:
Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and protection orders. Restraining orders require someone to not do a specific thing, such as:


#not disposing of property;
*not disposing of property,
#not racking up debt;
*not racking up debt,
#not talking to the children about the issues in the court proceeding; or,
*not talking to the children about the issues in the court proceeding, or
#not going to a particular place.
*not going to a particular place.


Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:
Protection orders are designed for the protection of a family member, and also require someone to not do a specific thing, such as:


#not communicating with the family member;
*not communicating with the family member,
#not going to a place where the family member goes to school or works;
*not going to a place where the family member goes to school or works,
#not possessing weapons; or,
*not possessing weapons, or
#not stalking the family members.
*not stalking the family members.


Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to:
Other types of interim order deal with procedural matters that have to do with the administration of the court proceeding, rather than with the relationship between the parties and their children. They can be useful to:


#set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents;
*set deadlines for the exchange of financial documents, such as bank statements, tax returns and report cards, or court documents like Financial Statements and Lists of Documents,
#force someone to submit to a medical or psychiatric examination;
*force someone to submit to a medical or psychiatric examination,
#authorize the preparation of a custody and access report; or,
*authorize the preparation of a custody and access report, or
#fix dates for hearings like Trial Management Conferences and Settlement Conferences.
*fix dates for hearings like Trial Management Conferences and Settlement Conferences.


Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the 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 finishes trial.
Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorce or an order dividing the 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 finishes trial.


===Making Interim Applications===
===Making interim applications===


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


#the person making the application, the ''Applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''Respondent'' or the ''Application Respondent'';
#The person making the application, the ''applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''respondent'' or the ''application respondent''.
#the Application Respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the Applicant;
#The application respondent has a certain amount of time to reply to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#the Applicant replies to the Application Respondent's reply; and,
#The applicant replies to the application respondent's reply.
#on the date of the hearing, the Applicant argues why the order sought should be made, the Application Respondent argues why the order sought shouldn't be made, and the judge or master hearing the application makes a decision one way or the other (or, often, a bit of both ways).
#On the date of the hearing, the applicant argues why the order sought should be made, the application respondent argues why the order sought shouldn't be made, and the judge or master hearing the application makes a decision one way or the other (or, often, a bit of both ways).


The requirements, deadlines and court forms for each of these steps are governed by the Rules of Court. The rules also set out how the application is set for hearing and heard and the nature of the court's the authority to decide the issues before it.
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 also set out how the application is set for hearing and heard and the nature of the court's the authority to decide the issues before it.


==The Supreme Court==
==The Supreme Court==
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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. 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, or to freeze the family property, for example.
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. 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, or to freeze the family property, for example.


The main Rules of Court about the application process and the forms used in this process are:
The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the application process are:


*Rule 1-1: definitions
*Rule 1-1: definitions
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*Rule 21-2: time
*Rule 21-2: time


Sample court forms and blank court forms for download are available in ______ .
Each rule tells you the forms you need to use. Sample court forms and blank court forms are linked to in available in [[Sample Supreme Court Forms (Family Law)]].


===When to Make an Application===
===When to make an application===


Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. 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, as might be the case if a parent is threatening to leave the country with the children or torch the family home.
Generally speaking, interim applications are only brought after the respondent has had a chance to file his or her Response to Family Claim and a Judicial Case Conference has been held. 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, as might be the case if a parent is threatening to leave the country with the children or torch the family home.


Rule 7-1(3) sets out the exceptions to the requirement that a JCC be held before any applications can be brought:
[http://canlii.ca/t/8mcr Supreme Court Family Rule 7-1(3)] sets out the exceptions to the requirement that a JCC be held before any applications can be brought:


#when an application is being made for an order restraining either or both parties from disposing of family assets;
#when an application is being made for an order restraining either or both parties from disposing of family assets;
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Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC.
Once the first JCC has been held, interim applications can usually be made at any time, without the need for a further JCC.


JCCs are discussed in more detail in the chapter _____ .
JCCs are discussed in more detail in the page on [[Case Conferences in a Family Law Matter]] in this chapter.


===Making an Application===
===Making an application===


To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the ''Application Respondent'', you must deliver these documents to the other party's address for service by ordinary service under Rule 6-2, usually by sending them to the Application Respondent's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.
To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the ''application respondent'', you must deliver these documents to the other party's address for service by ordinary service under [http://canlii.ca/t/8mcr Supreme Court Family Rule 6-2], usually by sending them to the application respondent's current address for service, which will usually be set out in his or her 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 below in more detail.
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 below in more detail.


====Notice of Application====
====Notice of application====


The Notice of Application describes:
The Notice of Application describes:


#the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for);
#the orders and declarations the Applicant is asking for (also called the ''relief'' the Applicant is asking for),
#the facts supporting the application;
#the facts supporting the application,
#the legal grounds on which the application is made;
#the legal grounds on which the application is made,
#the affidavits or other evidence on which the Applicant relies on in support of the relief sought;
#the affidavits or other evidence on which the applicant relies on in support of the relief sought,
#the amount of time the Applicant thinks it will take for the application to be heard; and,
#the amount of time the applicant thinks it will take for the application to be heard, and
#the date picked by the Applicant for the hearing of the application.
#the date picked by the applicant for the hearing of the application.


The form which must be used is Form F31, set out in the Supreme Court Family Rules. The cost to file an application is $80.00.
The form which must be used is Form F31, linked to in the page for [[Sample Supreme Court Forms (Family Rules)]]. The cost to file an application is $80.00.


====Supporting Affidavits====
====Supporting affidavits====


An affidavit is a written summary of relevant facts and information, 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. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the Supreme Court Family Rules.
An affidavit is a written summary of relevant facts and information, 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. The affidavits filed in support of the application may be brand new or they may have been prepared earlier for another application. The form which must be used is Form F30, set out in the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and linked to in the page for [[Sample Supreme Court Forms (Family Rules)]].


The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.
The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]].


===Replying to an Application===
===Replying to an application===


You must reply to an interim application if you object to 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 anything.
You must reply to an interim application if you object to 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 anything.


To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the Applicant by ordinary service, usually by sending them to the Applicant's current address for service, which will usually be set out in his or her Notice of Family Claim or Response to Family Claim.
To defend an interim application, you must prepare an Application Response and an affidavit in support of your position. You must serve these documents on the applicant by ordinary service, usually by sending them to the applicant's current address for service, which will usually be set out in his or her 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?]].


The Application Response and supporting affidavits must be filed in court and served on the Applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.
The Application Response and supporting affidavits must be filed in court and served on the applicant at least five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.


====Application Response====
====Application Response====
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An Application Response describes:
An Application Response describes:


#the orders sought by the Applicant which the Application Respondent agrees to;
*the orders sought by the applicant which the application respondent agrees to,
#the orders that the Application Respondent opposes;
*the orders that the application respondent opposes,
#the orders to which the Application Respondent neither opposes nor consents (this is called ''taking no position'' on an order);
*the orders to which the application respondent neither opposes nor consents (this is called ''taking no position'' on an order),
#the facts supporting the Application Respondent's position;
*the facts supporting the application respondent's position,
#athe legal grounds on which any opposed orders are opposed;
*the legal grounds on which any opposed orders are opposed,
#the affidavits or other evidence on which the Applicant Respondent relies on in opposing the application; and,
*the affidavits or other evidence on which the application respondent relies on in opposing the application, and
#the amount of time the Applicant Respondent thinks it will take for the application to be heard.
*the amount of time the application respondent thinks it will take for the application to be heard.


The form which must be used is Form F32, set out in the Supreme Court Family Rules. There is no fee to file an Application Response.
The form which must be used is Form F32, set out in the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and linked to in the page for [[Sample Supreme Court Forms (Family Law)]]. There is no fee to file an Application Response.


The Respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Application. This is called a ''cross-application''. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.
The application respondent can, at any time after being delivered with a Notice of Application, choose to file an application of his or her own for whatever relief he or she might want to claim against the applicant, also by a Notice of Application. This is called a ''cross-application''. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.


====Supporting Affidavits====
====Supporting affidavits====


An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the Supreme Court Family Rules.
An affidavit is a written summary of relevant facts and information, given under oath or affirmation. The affidavits filed with the Application Response should give evidence relevant to the reasons why the application is opposed. The supporting affidavits may be brand new or may consist of affidavits that have been prepared for previous applications and are already in the court file. The form which must be used is Form F30, set out in the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and linked to in the page for [[Sample Supreme Court Forms (Family Law)]].


The process for drafting affidavits and the rules about the content of affidavits are discussed in the How do I ? chapter of this website.
The process for drafting affidavits and the rules about the content of affidavits are discussed in the [[How Do I Prepare and Affidavit?]].


===Responding to the Reply===
===Responding to the Application Response===


The Applicant may prepare an affidavit responding to the affidavits provided by the Application Respondent. This new affidavit must be limited to answering new issues raised by the Application Respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the Applicant's first Affidavit.
The applicant may prepare an affidavit responding to the affidavits provided by the application respondent. This new affidavit must be limited to answering new issues raised by the Application Response and supporting affidavits of the application respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the applicant's first Affidavit.


The Applicant must file any responding affidavits in court and serve them on the Application Respondent by 4:00pm 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.
The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00pm 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 Application Respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the Application Respondent to file and make arguments based on a new affidavit.
Although the application respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.


===A Short Note about Time Estimates===
===A short note about 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.
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. Applications that will take less than two hours are heard on a day picked by the Applicant, although it's always best if the Applicant picks the date in consultation with the Application Respondent.
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. Applications that will take less than two hours are heard on a day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent.


Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be thirty. 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 ninety minute application might not be heard until much later in the day.
Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in chambers on a particular day or there could be thirty. 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 ninety minute application might not be heard until much later in the day.
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===Application Records===
===Application Records===


The Applicant must prepare the ''Application Record'' for the application. When both parties have an application scheduled to be heard on the same day, the parties must cooperate and prepare a joint Application Record.
The applicant must prepare the ''Application Record'' for the application. When both parties have an application scheduled to be heard on the same day, the parties must 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 4:00pm 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.
The Applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00pm 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 4:00pm 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 3:45pm, and I suggest you give yourself plenty of time to file your Record and get to the registry early.
If you file your Record after the deadline of 4:00pm 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 3:45pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.


An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. 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, including a passing a couple of hex bolts through the left-hand margin.
An Application Record contains documents relating to the application in a bound format for the benefit of the judge or master hearing the application. Under [http://canlii.ca/t/8mcr Supreme Court Family 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, including a passing a couple of hex bolts through the left-hand margin.


The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:
The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:


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


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Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases.
Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things may not be included in the Application Record, such as Affidavits of Service, copies of legislation and copies of cases.


Under Administrative Notice 7, you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:
Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notice 7], you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:


#the court file number, court registry and the names of the parties, they way these appear at the top of all other court documents;
#The court file number, court registry and the names of the parties, they way these appear at the top of all other court documents.
#the title of the document being filed ("Application Record");
#The title of the document being filed ("Application Record").
#the claimant's address for delivery, telephone number and fax number;
#The claimant's address for delivery, telephone number and fax number.
#the respondent's address for delivery, telephone number and fax number; and,
#The respondent's address for delivery, telephone number and fax number.
#the name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


A sample cover page is available in _______.
{{LSSbadge
|resourcetype = examples of an <br/>
|link        = [http://www.familylaw.lss.bc.ca/resources/court_forms.php#A Application Record index<br/> and cover page]
}}


===The Hearing===
===The Hearing===
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