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Interim Applications in Family Matters (view source)
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|resourcetype = a self-help guide on <br/> | |resourcetype = a self-help guide on <br/> | ||
|link = [http://www.familylaw.lss.bc.ca/guides/interim/cantAgree/supreme/index.php applying and responding to <br/> applications for interim orders <br/>in Supreme Court] | |link = [http://www.familylaw.lss.bc.ca/guides/interim/cantAgree/supreme/index.php applying and responding to <br/> applications for interim orders <br/>in Supreme Court] | ||
}}Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an ''interim application'' in court. | }}Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether and what amount of spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an ''interim application'' in court. | ||
This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts that should be discussed for a variety of common interim applications. | This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts that should be discussed for a variety of common interim applications. | ||
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==Introduction== | ==Introduction== | ||
Interim applications are applications for temporary, short-term orders made before trial. Interim orders | Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial. | ||
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 case from the Supreme Courtof British Columbia, 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 case from the Supreme Courtof British Columbia, the judge had this to say about interim orders: | ||
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===The purposes of interim applications=== | ===The 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, and sometimes to get some support flowing. Interim applications are most often made to <span class="noglossary">answer</span> 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 financial support flowing. Interim applications are most often made to <span class="noglossary">answer</span> questions like these: | ||
*What time will each parent have with the children? | *What time will each parent have with the children? | ||
*Should child support be paid? | *Should child support be paid and, if so, how much should be paid? | ||
*Should spousal support be paid | *Should spousal support be paid and, if so, how much should be paid? | ||
*Should only one spouse have the right to live in the family home? | *Should only one spouse have the right to live in the family home? | ||
*Should the property be frozen until it is divided by a final order or agreement? | *Should the property be frozen until it is divided by a final order or agreement? | ||
*Is a protection order necessary? | *Is a protection order necessary? | ||
*Is a form or restraining order or conduct order necessary? | |||
*Who should be responsible for paying debts or expenses to maintain the home pending trial? | |||
Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders and | Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct 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, | ||
*not making negative comments to the children about the other parent, or | |||
*not going to a particular place. | *not going to a particular place. | ||
Protection orders are designed for the protection of a family member | Protection orders are designed for the protection of a family member and are enforced by police. They require someone to not do a specific thing, such as: | ||
*not communicating with the family member, | *not communicating with the family member, | ||
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*not possessing weapons, or | *not possessing weapons, or | ||
*not stalking or harassing the family member. | *not stalking or harassing the family member. | ||
Conduct orders are designed to manage behaviours, such as: | |||
*how parties will communicate with each other (ie: written communication by email only), | |||
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course), | |||
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests, | |||
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance). | |||
Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to: | Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These 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 and Lists of Documents, | *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 and Lists of Documents, | ||
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or | |||
*authorize the preparation of a needs of the child assessment or views of the child report, or | *fix dates for case conferences like trial management conferences and settlement conferences. | ||
*fix dates for | |||
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 at 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 at trial. | ||
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#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 may prepare a reply to the application respondent's reply. | #The applicant may prepare a reply 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 who hears 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 who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down. | ||
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. It is very important to understand how the rules about interim | 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. It is very important to understand how the rules about interim applications work. | ||
==The Supreme Court== | ==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. 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, | 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, to freeze the family property, or for the payment of family debt (such as the mortgage) for example. | ||
The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the application process are: | The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the application process are: | ||
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===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 | 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 has a history of violence in the family. | ||
[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought: | [http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought: | ||
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#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, meaning the specific (1) rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation and the caselaw that party is relying on in support of their court application, | ||
#the affidavits or other evidence which the applicant relies on in support of the relief sought, | #the affidavits or other evidence 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 | ||
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An affidavit is a written summary of relevant facts and information, given under oath or affirmation. | 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. These affidavits may be brand new or they may have been prepared earlier for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. | 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 for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. | ||
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 ''How Do I?'' part of this resource under ''Affidavits''. | 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 ''How Do I?'' part of this resource under ''Affidavits''. | ||
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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 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?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''. | 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 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?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''. | ||
You may, at any time after being | You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of 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 Response==== | ====The Application Response==== | ||
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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 or months. 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 30. 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 30. 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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*what orders the applicant is asking the judge to make, | *what orders the applicant is asking the judge to make, | ||
*why the judge can make the orders the applicant is asking for, and | *why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the Divorce Act or the Family Law Act) that permits the judge to make the order), and | ||
*the facts that explain why the application has been made and why the judge should make the orders asked for. | *the facts that explain why the application has been made and why the judge should make the orders asked for. | ||
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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 judge or master will permit this. As well, the judge or master may ask the applicant and application respondent questions during their presentations to clarify things. | 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 judge or master will permit this. As well, the judge or master may ask the applicant and application respondent questions during their presentations to clarify things. | ||
After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision''. | After the judge or master has heard everyone's arguments, the judge or master will give his or decision. Sometimes the judge or master 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. | ||
===After the hearing=== | ===After the hearing=== | ||
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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. | 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 is binding on both parties from the moment the judge or master makes the order, and 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. | 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 both parties from the moment the judge or master makes the order, and 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=== | ===Timelines=== | ||
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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. | 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. | ||
Applications in the Provincial Court are often based on oral evidence, evidence giving by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Althought the exchange of affidavits is not a mandatory part of the process, many judges appreciate the convenience of having the evidence written out in affidavits. | |||
The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are: | The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are: | ||
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===When an application can be brought=== | ===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, as might be the case if the respondent was threatening to leave the country with the children. | 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, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence. | ||
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 [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php 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 the Parenting After Separation program and whether it is also a family justice registry. | 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 [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php 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 the Parenting After Separation program and whether it is also a family justice registry. | ||
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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 either 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. | 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 either 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. | ||
The applicant will make his or her case, and will have the opportunity to call evidence. | The applicant will make his or her case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so 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. | 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. | ||
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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 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. | ||
Once everyone is done, the judge will give his or her judgment on the application. The judge may give his or her 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 his or her decision in a written form later. | Once everyone is done, the judge will give his or her judgment on the application. The judge may give his or her 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 his or her decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date. | ||
Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under ''Courtroom Protocol''. You may wish to <span class="noglossary">review</span> [[How Do I Conduct Myself in Court at an Application?]] | Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under ''Courtroom Protocol''. You may wish to <span class="noglossary">review</span> [[How Do I Conduct Myself in Court at an Application?]] | ||
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*who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done, | *who was 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, | *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, | *the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation, | ||
*a description of any actual problems with a parent's capacity to care for the children. | *a description of any actual problems with a parent's capacity to care for the children; | ||
* any family violence concerns, | |||
*other caregivers or support at or near a parent's home, and | |||
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time). | |||
====Changing orders and agreements about the care of children==== | ====Changing orders and agreements about the care of children==== | ||
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*whether some or all of the children are stepchildren to the person who is to pay child support, | *whether some or all of the children are stepchildren to the person who is to pay child support, | ||
*whether some or all of the children are receiving child support from another parent, | *whether some or all of the children are receiving child support from another parent, | ||
*the nature of each parent's employment, | *the nature of each parent's employment, | ||
*each parent's income from their employment and any other source. | *each parent's income from their employment and any other source, and | ||
*whether the children have special or extraordinary expenses. | |||
====Basic financial information==== | ====Basic financial information==== | ||
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*each party's present income and the sources of that income, | *each party's present income and the sources of that income, | ||
*a description of the each party's living expenses after separation, | *a description of the each party's living expenses after separation, | ||
*any career sacrifices made during the relationship, | *any career sacrifices made during the relationship, including any promotions, raises or educational opportunities foregone by the party, | ||
*the parties' education and training history, prior to and during the | *any moves during the parties' relationship that impacted either or both parties' employment prospects, | ||
*the parties' education and training history, prior to and during the relationship, | |||
*contributions by one party to the other party's career during the relationship, | |||
*a description of any education and training taken after separation, especially any education geared to finding employment, | *a description of any education and training taken after separation, especially any education geared to finding employment, | ||
*the ages and school status of the children at the date of separation, and | *the ages and school status of the children at the date of separation, and | ||
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Other important facts usually include: | Other important facts usually include: | ||
*the terms of the initial order (and attach a copy of the initial order as an exhibit), | |||
*each party's present income, | *each party's present income, | ||
*each party's income at the time of the | *each party's income (and other financial circumstances if relevant) at the time of the initial order, | ||
*the steps the recipient has taken to become financially self-sufficient, | *the steps the recipient has taken to become financially self-sufficient, | ||
*education or training taken by the recipient since the order was made, | *education or training taken by the recipient since the order was made, | ||