Interim Applications in Family Matters: Difference between revisions

===After The hearing===

====Making an Application====

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

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

The Application Respondent must file and serve the Application Response and supporting materials:

====Responding to a Reply====

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

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:

====Sample Timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday 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; nothing stops you from agreeing to a more generous set of due dates.

|align="center"|<br>'''Applicant''' files and serves application materials on the Application Respondent.<br>&nbsp;||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''

|align="center"|''Fifth business day after service.''<br>&nbsp;<br>'''Application Respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"|<br>''Seventh business day after service.''<br>&nbsp;<br>'''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.<br>&nbsp;||align="center"|''Eighth business day after service.''<br>&nbsp;<br>''One business day before the date of the hearing.''||align="center"|'''DAY OF<br>HEARING.'''

In this example, the Application Respondent's materials are due on Monday on 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 4:00pm 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.

|align="center"|<br>'''Applicant''' files and serves application materials on the Application Respondent.<br>&nbsp;||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''

===A Short Note about Courtesy===

The Supreme Court Family Rules allow an Applicant to simply set the hearing date without consulting the 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 an adjournment &#151; a delay &#151; of your application.

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 some other day.

#the date when you'll have the application materials to the Application Respondent;

#the date when the Application Respondent will get his or her reply materials to you; and,

#the hearing date.

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''Applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''Respondent'', the person against whom the application has been brought. The Respondent is not required to file anything in reply to the application.

Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits. As a result, the exchange of Affidavits is not a mandatory part of the process.

The principle Rules of Court which relate to these documents and the application process are:

===When an Application can be Brought===

Generally speaking, interim applications are only brought after the Respondent has had a chance to file his or her Reply to the Applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the Parenting After Separation program under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for Parenting After Separation program and whether it is also a family justice registry.  

Rule 5 of the Provincial Court Family Rules applies to those registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

#Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court;

#Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute;

#Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor; and,

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where the court proceeding involves orders about the care of children or child support. Rule 21 sets out yet more hoops to jump through, however the Parenting After Separation program is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

#Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program;

#Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance;

#Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years; and,

#Rule 21(7) allows the court to exempt someone from completing the program in the case of urgent circumstances.

Family Case Conferences are similar in many ways to the Judicial Case Conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

===Making an Application===

To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard court form, Form 16, that comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with his or her copy at least seven dates before the date the application is set to be heard.

===Defending an Application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response.

===The Hearing===

On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) says that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.) Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to one side of the centre podium.

The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. Stand whenever the judge speaks to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in affidavit format. Affidavits can be used, but for some reason this is rarely the case. Most judges would prefer to have an affidavit, and if you can prepare one, you should. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them, or may make an affidavit in reply to the Applicant's affidavit.

Once the Applicant's case is done, the Respondent may present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses.

A discussion of courtroom protocol is available in the How Do I ? chapter.

After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why the judge should make the order asked for. The 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 Respondent's reply.

===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 judgment. If there were no lawyers present, the court clerk will draft the order.

==Common Interim Applications==

===Care of Children===

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

#the children's names, birthdates and ages;

#where the children go to school and what grade they're in;

#any important health or educational concerns;

#the occupation of each parent;

#each parent's usual work schedule;

#how the parents shared the parenting of the children while they were together;

#who was most responsible for arranging things like visits to the doctor and dentist;

#who was most responsible for looking after school issues, like parent-teacher meetings and making sure homework was done;

#how the parents have shared the parenting of the children since they separated;

#the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation; and,

#a description of any actual problems with a parent's capacity to care for the children.

#what is the change in the child's needs or circumstances since the order was made; and,

#how the order had worked out;

#did the parents follow the terms of the order; and,

#how the agreement has worked out;

#did the parents follow the terms of the agreement; and,

===Child Support===