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Interim Applications in Family Matters (view source)
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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 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 | 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 lists of all orders that possibly might be made. | ||
===Care of children=== | ===Care of children=== | ||
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When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include: | When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include: | ||
*the children's names, birth dates and ages, | *the children's names, birth dates, and ages, | ||
*where the children go to school and what grade they're in, | *where the children go to school and what grade they're in, | ||
*any important health or educational concerns, | *any important health or educational concerns, | ||
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*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, | * any family violence concerns, | ||
*other caregivers or support at or near a parent's home, and | *other caregivers or support at or near a parent's home, and | ||
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*what is the change in the child's needs or circumstances since the original order was made, and | *what is the change in the child's needs or circumstances since the original order was made, and | ||
*how has this change affected the best interests of the | *how has this change affected the best interests of the child? | ||
Other important facts might include: | Other important facts might include: | ||
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The important facts that go into most applications for child support are: | The important facts that go into most applications for child support are: | ||
*the children's names, birth dates and ages, | *the children's names, birth dates, and ages, | ||
*how the children's time is divided between the parents, | *how the children's time is divided between the parents, | ||
*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, | ||
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====Basic financial information==== | ====Basic financial information==== | ||
Applications about child support typically require that each parent cough up certain documents in order to establish their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial Complete a Supreme Court financial statement] and [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial Complete a Provincial Court financial Statement] for more information. The most common income-related documents for people who are ''employees'' are: | |||
*the last three years of personal income tax returns, | *the last three years of personal income tax returns, | ||
*all notices of assessment or reassessment received in relation to the last three tax years, and | *all notices of assessment or reassessment received in relation to the last three tax years, and | ||
*a recent paystub showing earnings-to- | *a recent paystub showing earnings-to-date or a letter from the employer confirming the terms of a party's income. | ||
People who have income from | People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. | ||
People who are ''self-employed'' in an unincorporated business will also have to produce: | People who are ''self-employed'' in an unincorporated business will also have to produce: | ||
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====Changing child support orders and agreements==== | ====Changing child support orders and agreements==== | ||
If the application is to change | If the application is to ''change'' child support, the important facts for the Court will be those that address the threshold ''legal tests'' for changing child support: | ||
*has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's ''income'', | |||
*has there been a change in the ''needs and circumstances'' of the child, | |||
*whether you have discovered ''new evidence'' about income (or a person's ability to earn income) since the last hearing, or | |||
*whether you have discovered proof that someone's ''financial disclosure was incorrect or inadequate'' at the last hearing. | |||
Other important facts usually include: | Other important facts usually include: | ||
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*updated information concerning any special expenses. | *updated information concerning any special expenses. | ||
If the application is to set aside an agreement about | If the application is to ''set aside an agreement'' about child support, important facts for the Court will, again, be those that address the threshold legal test: | ||
*what amount of support should the Court order, and | |||
*why should the Court make a different order than what was agreed to? | |||
===Spousal support=== | ===Spousal support=== | ||
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====Important factors==== | ====Important factors==== | ||
When making the first application for spousal support, the important facts will include: | When making the ''first application'' for spousal support, the important facts will include: | ||
*the date the parties began to live together and the date they married, | *the date the parties began to live together and the date they married, | ||
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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, including any promotions, raises or educational opportunities foregone by the party, | *any career sacrifices made during the relationship, including any promotions, raises, or educational opportunities foregone by the party, | ||
*any moves during the parties' relationship that impacted either or both parties' employment prospects, | *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, | *the parties' education and training history, prior to and during the relationship, | ||
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====Basic financial information==== | ====Basic financial information==== | ||
All applications about spousal support typically require that each spouse cough up certain documents to prove their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial | All applications about spousal support typically require that each spouse cough up certain documents to prove their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial Complete a Supreme Court financial statement] and [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial Complete a Provincial Court financial Statement] for more information. The most common income-related documents for people who are employees are: | ||
*the last three years of personal income tax returns, | *the last three years of personal income tax returns, | ||
*all notices of assessment or reassessment received in relation to the last three tax years, and | *all notices of assessment or reassessment received in relation to the last three tax years, and | ||
*a recent paystub showing earnings-to- | *a recent paystub showing earnings-to-date or a letter from the employer confirming the terms of a party's income. | ||
People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. | People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments. | ||
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====Changing spousal support orders or agreements==== | ====Changing spousal support orders or agreements==== | ||
If the application is to change an order about spousal support, important facts will | If the application is to ''change an order'' about spousal support, the important facts for the Court will be those necessary to address the threshold legal tests for changing an order for spousal support: | ||
*has there been a change in the ''means or needs'' of either spouse since the last order was made, | |||
*whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or | |||
*whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing. | |||
Other important facts usually include: | Other important facts usually include: | ||
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If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated: | If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated: | ||
*a party failed to disclose relevant income, property or debt, | *a party failed to disclose relevant income, property, or debt, | ||
*one party took advantage of the other party's vulnerability or ignorance, | *one party took advantage of the other party's vulnerability or ignorance, | ||
*a party didn't understand the nature of the agreement, | *a party didn't understand the nature of the agreement, | ||
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===Protection orders=== | ===Protection orders=== | ||
The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]]. | The court can make a variety of orders where there is (or has been) a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the ''[[Family Law Act]]'' (starting at section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]]. | ||
The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include: | The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include: | ||
*orders prohibiting or limiting contact with the at-risk family member | *orders prohibiting or limiting contact with the at-risk family member, | ||
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member | *orders prohibiting a person from attending, nearing, or entering a place regularly attended by the at-risk family member, including the residence, property, business, school, or place of employment of the at-risk family member (even if the person owns the place, or has a right to possess the place), | ||
*orders prohibiting a party from following the at-risk family member, | *orders prohibiting a party from following the at-risk family member, | ||
*orders prohibiting the possession of a weapon, firearm or a specified object, | *orders prohibiting the possession of a weapon, firearm, or a specified object, | ||
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm | *orders prohibiting the possession of a licence, registration certificate, authorization, or other document relating to a weapon or firearm, and | ||
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings. | *orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member, or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings. | ||
====Important factors==== | ====Important factors==== | ||
When making an application for a Protection Order under the Family Law Act, important facts will usually include: | When making an application for a ''Protection Order'' under the ''Family Law Act'', important facts will usually include: | ||
*the date when you began living together, the date of marriage (if any) and the date you separated, | *the date when you began living together, the date of marriage (if any), and the date you separated, | ||
*the names, birth dates and ages of your children, if any, | *the names, birth dates, and ages of your children, if any, | ||
*the ages and occupation of each party, | *the ages and occupation of each party, | ||
*the history of the family violence, which could include: | *the history of the family violence, which could include: | ||
**a description of the dynamics of the relationship, including whether it has stayed the same or changed over time, | |||
**a description of any physical, sexual, psychological, or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered | |||
**a description of any destruction to property, | |||
*any factors which have caused you to be isolated in your relationship | *any factors which have caused you to be isolated in your relationship | ||
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons, | *any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons, | ||