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Difference between revisions of "Interim Applications in Family Matters"
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Interim Applications in Family Matters (view source)
Revision as of 17:37, 9 June 2019
, 17:37, 9 June 2019no edit summary
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===When to make an application=== | ===When to make an application=== | ||
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 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: | ||
*when an application is being made for an order restraining either or both parties from disposing of family | *when an application is being made for an order restraining either or both parties from disposing of family property, | ||
*when the order will be made with the agreement of both parties, or, | *when the order will be made with the agreement of both parties, or, | ||
*when the application is being made without notice being given to the other side (sometimes called an ''ex parte application''). | *when the application is being made without notice being given to the other side (sometimes called an ''ex parte application''). | ||
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===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 [http://canlii.ca/t/8mcr 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. | 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 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. | ||
(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.) | |||
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. | 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. | ||
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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, meaning the specific | *the legal grounds on which the application is made, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any 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. 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 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 [[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. | ||
=== | ===Responding to an application=== | ||
You must | You must respond 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. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications. | ||
To | To respond to an interim application, you must prepare a court form called an Application Response 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?]] 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 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?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''. | ||
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====Supporting affidavits==== | ====Supporting affidavits==== | ||
An affidavit is a written summary of relevant facts and information, given under oath or affirmation. | An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation. | ||
The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared 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 Application Response should give evidence that helps to 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 [[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. | ||
=== | ===Replying to the Application Response=== | ||
The applicant may prepare an affidavit | The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed 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 must file any responding affidavits in court and serve them on the application respondent by 4: | 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 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. | ||
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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. | 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 | 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 court 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 (or may even be postponed to another day if the judge runs out of time). | ||
===The Application Record=== | ===The Application Record=== | ||
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}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they must cooperate and prepare a joint Application Record. | }}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they 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: | 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: | 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 [http://canlii.ca/t/8mcr 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 running 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: | Under [http://canlii.ca/t/8mcr 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 running 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: | ||
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(A ''tab'' is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a table of contents divider that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.) | (A ''tab'' is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a table of contents divider that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.) | ||
Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things | Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases. | ||
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: | 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: | ||
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#The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents. | #The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents. | ||
#The title of the document (usually just ''Application Record''). | #The title of the document (usually just ''Application Record''). | ||
#The claimant's address for delivery, telephone number | #The claimant's address for delivery, telephone number, fax number (if any) and email. | ||
#The respondent's address for delivery, telephone number | #The respondent's address for delivery, telephone number, fax number (if any) and email. | ||
#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. | ||
<!---NEED TO PLACE REFERENCE TO JP'S APPLICATION RECORD RESOURCES HERE---> | <!---NEED TO PLACE REFERENCE TO JP'S APPLICATION RECORD RESOURCES HERE---> | ||