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Interim Applications in Family Matters (view source)
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*Who should be responsible for paying debts or expenses to maintain the home pending trial? | *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, protection orders and conduct orders. | 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: | Restraining orders require someone to not do a specific thing, such as: | ||
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*how parties will communicate with each other (ie: written communication by email only), | *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 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 refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests, or | ||
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance). | *requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance). | ||
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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 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 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 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 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 | 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. | ||
===Responding to an application=== | ===Responding to an application=== | ||
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 | 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 Reply 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. | ||
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. | To respond to an interim application, you must prepare a court form called an [[Form F32 Application Response|Application Response (Form F32)]] and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail. | ||
You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] | You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]], in the ''How Do I?'' part of this resource. | ||
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. | 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. | ||
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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 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?]] | The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]], in the ''How Do I?'' part of this resource. | ||
===Replying to the Application Response=== | ===Replying to the Application Response=== | ||
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===The Application Record=== | ===The 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 4:00 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. | 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. | ||
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#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). | ||
(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 | (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 it; 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 are not allowed to 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 are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation, and copies of cases. | ||
The Supreme Court issued [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notice 14], which explains what the cover page should include: | |||
* 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 claimant's address for delivery, telephone number, fax number (if any), and email. | |||
* 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. | |||
* For written submissions that have been requested or directed by a judge following a hearing, the name of the judge presiding at the hearing. | |||
Administrative Notice 14 (which replaced Administrative Notice 7 in 2017) contains an example of an acceptable cover page. | |||
===The hearing=== | ===The hearing=== | ||
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Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online]. | Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online]. | ||
The judge or master will enter the courtroom at 10: | The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved. | ||
When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the ''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?]] | When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the ''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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*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 ( | *why the judge can make the orders the applicant is asking for (i.e. 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 | After the judge or master has heard everyone's arguments, the judge or master will give their 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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|align="center"|<br>'''Applicant''' files and serves application materials on the application respondent.<br> ||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"|<br>'''Applicant''' files and serves application materials on the application respondent.<br> ||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> <br>'''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"|<br>''Seventh business day after service.''<br> <br>'''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.<br> ||align="center"|''Eighth business day after service.''<br> <br>''One business day before the date of the hearing.''||align="center"|'''DAY OF<br>HEARING''' | |align="center"|''Fifth business day after service.''<br> <br>'''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"|<br>''Seventh business day after service.''<br> <br>'''Applicant''' files and serves responding affidavits, files Application Record, and serves Application Record index by 4:00pm.<br> ||align="center"|''Eighth business day after service.''<br> <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 | In this example, the application respondent's materials are due on Monday of the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record, and serve the Application Record index on the application respondent by 4:00pm 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. | 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. | ||
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|align="center"|<br>'''Applicant''' files and serves application materials on the application respondent.<br> ||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"|<br>'''Applicant''' files and serves application materials on the application respondent.<br> ||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"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''<br> <br>'''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"|<br>''Seventh business day after service.''<br> <br>'''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.<br> ||align="center"|''Eighth business day after service.''<br> <br>''One business day before the date of the hearing.'' | |align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''<br> <br>'''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"|<br>''Seventh business day after service.''<br> <br>'''Applicant''' files and serves responding affidavits, files Application Record, and serves Application Record index by 4:00pm.<br> ||align="center"|''Eighth business day after service.''<br> <br>''One business day before the date of the hearing.'' | ||
|- | |- | ||
|align="center"|<br>'''DAY OF<br>HEARING.'''<br> || || || || | |align="center"|<br>'''DAY OF<br>HEARING.'''<br> || || || || | ||
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===A short note about courtesy=== | ===A short note about courtesy=== | ||
The [http://canlii.ca/t/8mcr 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 a delay your application. This is called an ''adjournment''. | The [http://canlii.ca/t/8mcr 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 a delay to your application. This is called an ''adjournment''. | ||
If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day. | 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. | ||
It can be tough to call your ex (or their lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on the date of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect | It can be tough to call your ex (or their lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on the date of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that—that's why the rules and deadlines exist in the first place. | ||
==The Provincial Family Court== | ==The Provincial Family Court== | ||
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*Rule 21: parenting after separation program | *Rule 21: parenting after separation program | ||
For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this | For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]], in the ''[[How Do I?]]'' section of this resource. | ||
===When an application can be brought=== | ===When an application can be brought=== | ||
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Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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. | Generally speaking, interim applications are only brought after the respondent has had a chance to file their 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 [ | 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 [https://www.clicklaw.bc.ca/question/commonquestion/1010 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. | ||
====Family justice registries==== | ====Family justice registries==== | ||
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====Family case conferences==== | ====Family case conferences==== | ||
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 | 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 a 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. | ||
This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section. | This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section. | ||
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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. | 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. | ||
For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource | For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]]. It is located in the ''How Do I?'' part of this resource. | ||
===The hearing=== | ===The hearing=== | ||
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==Common interim applications== | ==Common interim applications== | ||
The following discussion reviews the basic facts that will usually need to be proven for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case. For a sample of common terms that are included in orders see [https://www. | The following discussion reviews the basic facts that will usually need to be proven for some of the most common interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case. For a sample of common terms that are included in orders see [https://www.clicklaw.bc.ca/resource/4130 Supreme Court Orders] and [https://www.clicklaw.bc.ca/resource/4085 Provincial Court Orders]. These lists cover common orders made but are not complete of all orders that might be made. | ||
===Care of children=== | ===Care of children=== | ||