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This chapter will provide an introduction to interim applications, discuss the process for making and defending interim applications in the Supreme Court and in the Provincial (Family) Court, and review some of the basic facts which must be proved for a variety of common interim applications. Introduction Interim applications are applications for temporary, stop-gap orders made ahead of trial. Interim orders are only good until they are varied following another interim application or until a final order is made at trial or following settlement. 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 M.(D.R.) v. M.(R.B.), a 2006 case of the BC Supreme Court, the judge had this to say about interim orders: "Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits." "Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case." Interim applications are particularly common in family law actions, 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 answer questions like these:
Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders. Restraining orders essentially require someone to not do a specific thing, such as:
Other types of interim order deal with procedural matters that have to do with the conduct of the litigation, rather than with the relationship between the parties and their children. They can be useful to:
Pretty much anything can be dealt with at an interim application, except for things that final in nature, like an order for divorce or an order dividing the family assets. 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 trial. The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial (Family) Court, is a miniature version of the process for starting or defending an action:
The requirements, deadlines and court forms for each of these steps are governed by the Rules of Court. The Rules also set out how the application is set for hearing and heard and describe the authority of the court to decide the issues before it. Back to the top of this chapter. The Supreme Court Interim applications are only brought after an action has been 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 custody, guardianship and access to the children, to set out interim spousal or child support, or to freeze the family assets, for example. The main Rules of Court about the application process and the forms used in this process are:
A link to the Supreme Court Rules of Court is provided in the section Resources & Links. Note that the current rules will be replaced with an entirely new set of rules on 1 July 2010; these are discussed in Rules 101 and can be found on line at the website of the Ministry of the Attorney General (PDF). To get a proper picture of the application process, the court forms and the deadlines, you should read all of this segment, whether you're bringing an application or defending one. Another helpful resource is Court Tips for Parents, a website put together by the Law Courts Education Society about interim applications featuring a great series of instructional videos. When to Make an Application Generally speaking, interim applications are only brought after the Defendant has had a chance to file his or her Statement of Defence and a Judicial Case Conference has been held. Applications can be brought earlier than this — sometimes on the same day that the an action 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. Rule 60E(2) sets out the exceptions to the requirement that a JCC be held before any applications can be brought:
If an application must be brought before a JCC, you must apply for relief from the rule requiring the JCC before your application can go ahead. Once a JCC has been held, on the other hand, an application can be brought at any time, without the need for another JCC. JCCs are discussed in more detail in the chapter The Legal System > Starting an Action. Making an Application To start an interim application, you must prepare a Notice of Motion and your Affidavit in support of your application. Unless your application is being brought without notice to the Respondent, you must deliver these documents to the Respondent's "address for delivery," as set out in the Plaintiff's Writ of Summons or the Defendant's Appearance. Notice of Motion The Notice of Motion describes: the orders and/or declarations the Applicant wants the court to make (also called the "relief sought"); the legal grounds on which the relief is claimed; the Affidavits or other evidence which the Applicant relies on in support of the relief sought; the rules and/or legislation the Applicant will rely on; and, an estimate of the time the Applicant thinks it will take for the application to be heard. The form which must be used is Form 55, set out in Appendix A of the Supreme Court Rules of Court. The cost to file an application is $62.00. Supporting Affidavits An Affidavit is a statement of fact given under oath. The Affidavits filed with the Notice of Motion contain evidence relevant to the application. The Affidavits filed in support of the application may be brand new or they may consist of Affidavits that have been prepared previously and are already in the court file. The form which must be used is Form 60, set out in Appendix A of the Supreme Court Rules of Court. The process for drafting your Affidavit and the rules about the content of your Affidavit is discussed in the How do I ? section of this website. Sample Documents The links below will open a sample Notice of Motion and a sample Notice of Hearing in a new window. You will require Adobe Acrobat Reader to view these files, a free program available for download from Adobe Software. In this sample, our fictitious Defendant, John Doe, is applying for three common orders: an Declaration that the he and his wife, Jane Doe, have no reasonable prospect of reconciling; a financial restraining order against Jane; and, an order that he have exclusive occupancy of the family home. (For more information about these sorts of orders, see the Family Assets section.) Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.
These sample documents are just that: samples. While they represent a more or less accurate picture of how John Doe might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form. Templates of these documents in Microsoft Word format are available for download in the Resources & Links section of this website. Defending an Application To defend an interim application, you must prepare a Response and your Affidavit in support of your position. You must deliver these documents to the Address for Delivery set out in the Plaintiff's Writ of Summons or the Defendant's Appearance. Response A Response has four parts: a statement as to which of the Applicant's claims the Respondent doesn't oppose; a statement of the claims which are opposed; a statement of the claims which the Respondent will not oppose, providing certain conditions are met; and, a list of the Affidavits or other evidence which the Respondent will rely on in opposing of the relief sought by the Applicant. The Response also contains the Respondent's estimate of the time that will take for the application to be heard. The form which must be used is Form 124, set out in Appendix A of the Supreme Court Rules of Court. There is no fee to file Response. The Response and supporting Affidavits must be delivered to the Applicant within eight days after the Notice of Motion was delivered to the Respondent. The Respondent can, at any time after being delivered with a Notice of Motion, chose to file an application of his or her own for whatever relief he or she might want to claim against the Applicant, also by a Notice of Motion. This is called a "cross-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. Supporting Affidavits An Affidavit is a statement of fact given under oath. The Affidavits filed with the Response contain evidence relevant to grounds on which the application is opposed. The supporting Affidavits may be brand new or may consist of Affidavits that have been prepared previously and are already in the court file. The form which must be used is Form 60, set out in Appendix A of the Supreme Court Rules of Court. The process for drafting your Affidavit and the rules about the content of your Affidavit is discussed in the How do I ? section of this website. Sample Documents The links below will open a sample Appearance, Statement of Defence and Counterclaim in a new window. You will require Adobe Acrobat Reader to view these files, a free program available for download from Adobe Software. In this sample, our fictitious Defendant, John Doe, has brought an application for an Declaration that the parties are unable to reconcile, a financial restraining order and an order that he have exclusive occupancy of the family home. Since Jane also wants the Declaration and the restraining order, she doesn't oppose those claims, but she does oppose the claim for exclusive occupancy. (For more information about these topics, see the sections Children, Child Support, Spousal Support, and Family Assets.) Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.
This sample document is just that: a sample. While it represents a more or less accurate picture of how Jane Doe might fill out her form, they may not be applicable to your situation. Use this as a reference only together with the official court form. A template of this document in Microsoft Word format is available for download in the Resources & Links section of this website. Time Estimates Time estimates are very important in applications before the Supreme Court. The length of time an application will take to be heard will determine when the application is heard, how the hearing date is set, and what documents are required by the court for the application. 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 months. Applications that will take less than two hours are heard on a day picked by the parties. If an application will take between half an hour and two hours to be heard, each party must go through an additional step and provide each other with Outlines. The Applicant must also prepare a Chambers Record. (Outlines and Chambers Records are described below.) If an application will take less than half an hour, the parties do not need to exchange Outlines, and the Applicant does not need to prepare and file a Chambers Record. Note that the shorter an application is, the the more likely it is to be heard sooner than later. There could be two applications set be heard in chambers on a particular day or there could be twenty. The chambers 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 won't be heard until much later in the day. Outlines and Chambers Records If an application will take longer than half an hour to be heard, both parties must prepare an Outline. An Outline is a court form in which the parties summarize their positions and the facts they say support their respective positions. The Applicant fills out Part 1 and 2 of the Outline, stating which of the claims set out in the Notice of Motion he or she intends to address at the hearing of the application, and summarizing the facts and the law on which the application is based. In a separate document, the Respondent fills out Part 3 of the Outline, stating the facts and the reasons why he or she opposes the application. Once the Applicant has received the Respondent's Response, Outline Part 3 and supporting Affidavits, the Applicant should prepare the Chambers Record. A Chambers Record is a three-ring binder containing all of the materials that both parties will rely on at the hearing, separated by tabs, and an index to those materials. A Chambers Record usually contains the following documents, in this order:
Certain things may not be included in the Chambers Record, such as written arguments. These are set out in Rule 51A of the Rules of Court. Please tape a title page to the front cover of the binder with the names of the parties and the file number of the action. This will assist the court clerk greatly. Sample Documents These Outlines use the scenario between Jane and John Doe previously described abvove. Had John's application been set for longer than half an hour, these are the documents each party would have had to prepare. Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.
These sample documents are just that: samples. While they represent a more or less accurate picture of how John Doe might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form. Templates of these documents in Microsoft Word format are available for download in the Resources & Links section of this website. Setting an Application down for Hearing The Applicant may set down his or her application for hearing as soon as the Rules of Court permit, as described below. An application is set for hearing by delivering the other party with a Notice of Hearing and then filing all of the materials, plus two extra copies of the Notice of Motion and the Outlines, at the court registry before noon on the day before the hearing. As long as the application will take less than two hours to be heard, the registry will set the matter for hearing the following day. All applications that are going to be heard that day are set to be heard at 9:45am. A sample of John Doe's Notice of Hearing is provided above. The Hearing The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day walks up to the front of the courtroom and signs 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 inside the courtroom. All the motions that are going to be heard that day are listed on this list, but in no particular order.) 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 calls each application by their 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 walk up to the front of the court and identify themselves to the judge. The Applicant speaks first and presents his or her case. The Respondent then presents his or her side of the case. Following this, the Applicant will have a chance to answer the Respondent's argument, and the 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 Respondent questions during their presentations to clarify things. A discussion of courtroom protocol is available in the How Do I ? section of this website. 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 Hearing It is the job of the Applicant to turn whatever the judge or master has decided into a written order. Orders are very particular as to form and wording, so be careful and be accurate! Usually, both the Applicant and the Respondent review and sign the order the Applicant has drafted. Once that is done, the Applicant gives the draft order to the Court Registry for approval and entry into the court's book of orders. The registry enters the draft order by checking it 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 is signed and stamped by the registry and entered into a book containing all of the various orders of the court. Note that while 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, regardless of whether it takes a day or a month to enter the order. Timelines and Deadlines The following is a summary of the timelines set out in Rules 44 and 51A of the Supreme Court Rules of Court. Rule 44 deals with interim applications and Rule 51A deals with setting those applications for hearing. The trick in counting time under these rules is to count backwards from the day you want to have the hearing set for.
The above chart indicates the shortest possible time in which normal applications may be heard. While the Respondent must deliver his or her Response within 8 days, the Applicant is not required to deliver the Respondent with his or her Notice of Hearing the very next day. Remember that once the Response has been delivered, the date of the hearing will depend on when the Applicant chooses to deliver his or her Notice of Hearing! Important Notes to this Chart: (1) If an application is being made for final judgement under Rule 18A, the Respondent has 11 days, rather than 8, to deliver his or her Response and supporting Affidavits to the Applicant. (2) The time between the delivery of the Notice of Hearing and the date of the hearing is fixed in "clear days," not calendar days. In counting clear days, do not include Sundays or holidays. (The same rule goes for the filing of the application materials in the court registry and the time by which the Respondent must deliver the Applicant with his or her Outline Part 3.) To make matters worse, when you're counting clear days, the day on which the materials were delivered doesn't count, and the last day of the clear days is also a part of timeline. In otherwords, if you must wait 7 clear days before you can do something, day 1 is when the other party receives your notice. Day 2 is the start of the 7 clear days. Day 8 is the last day of the clear days... don't forget that Sundays and holidays don't count. Day 9 is the day you can finally act. For more information, have a look at Rule 3 of the Rules of Court and s. 29 of the provincial Interpretation Act. (3) Even if you follow the Rules to the letter, it's still possible to mess up. It's best err on the side of caution and add an extra day or two. Back to the top of this chapter. The Provincial (Family) Court Interim applications are brought only after an action has been started. The person bringing the application, the Applicant, must file his or her Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the Respondent, the person against whom the application has been brought. The Respondent is not required to file anything in reply to the application. Most often, applications in the Provincial Court are based on oral evidence rather than Affidavits. As a result, the exchange of Affidavits is not required. The principle Rules of Court which relate to these documents and the application process are:
A link to the Provincial Court Rules of Court is provided in the section Resources & Links. Please note that it is important to read the whole of this segment, regardless of whether you're bringing an application or defending one, to get a proper picture of the application process, the documents required and the timelines and deadlines involved in an interim application. 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 Application to Obtain an Order or the Appliction to Change an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, such as might be the case if the Respondent was threatening to leave the country with the children. The precise rules about when an application can be brought depend on whether or not the registry your action is filed in is a "family justice registry." The court clerk will tell you whether or not your registry is a family justice registry. Family Justice Registries Rule 5 of the Provincial Court (Family) Rules applies to registries of the Provincial Court that have been designated as family justice registries. Under that rule, the parties to an action are required to jump through a number of hoops before the parties first appear in court.
Registries designated as family justice registries must also apply Rule 21 to parties where their action involves the care and control of children or child support. Rule 21 sets out yet more hoops for the litigants.
Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly bizarre circumstances, such as parents who have been separated for many years being required to take the Parenting After Separation Program and other parents being required to take the progam three or four times. Once Rules 5 and 21 have been complied with, however, the parties to an action can follow the standard rules for bringing on an interim application, set out below. Contact information for the Parenting After Separation Program is provided in the chapter Children > Parenting After Separation. 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 is not mandatory that an FCC be held before an interim application can be brought. You need not wait for your FCC before you bring on an interim application. Making an Application To make an interim application, the Applicant must file a Notice of Motion in the court registry. The Notice of Motion is a standard form, Form 16, which comes from the courthouse pre-printed in quadruplicate. The form is simple to complete and has check boxes which can simply be ticked off to indicate the sort of order that you want the court to make. The registry will stamp all of the copies and keep the top sheet. You must then serve the Respondent with his or her copy at least seven dates before the date the application is set to be heard. The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain particular days set aside for hearing interim applications in family law cases. Defending an Application If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the Rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form used for responding to Applications to Obtain an Order and Applications to Change an Order rather than to Notices of Motion. There are no rules about when the Applicant be served with a response. The Hearing On the date set for hearing, show up at court at the appointed time. (Note that Rule 12(4) says that if a Respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the Respondent's absence and make the order requested by the Applicant.) Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and take a seat to one side of the centre podium. The judge will ask you to identify yourself and will ask the Applicant what his or her application is all about. Stand whenever the judge is speaking to you. The Applicant will make his or her case, and will have the opportunity to call evidence. Most evidence is given orally, on oath, rather than in Affidavit format. Affidavits can be used, but for some reason this is rarely the case. The Respondent will have a chance to challenge the Applicant's witnesses and cross-examine them. Once the Applicant's case is done, the Respondent can present his or her own case, and call witnesses to give evidence just the way the Applicant did. Likewise, the Applicant will be able to cross-examine the Respondent's witnesses. A discussion of courtroom protocol is available in the How Do I ? section of this website. After the evidence from both sides has been given, the Applicant will have the opportunity to summarize his or her case and argue why he or she should have the order sought. The Respondent will be able to reply to this argument, after which the Applicant may have the opportunity to make a reply to the Respondent's reply. Once argument has finished, the judge will give his or her judgment on the application. The judge may give his or her decision right away, or may "reserve" judgment until some later time. After the Hearing If the parties to the hearing were represented by lawyers, the Applicant's lawyer will usually draft an order based on the judge's judgment. If there were no lawyers present, the court clerk will draft the order. While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not. Sample Documents The link below will open a sample Notice of Motion in a new window. In the sample Notice of Motion, our fictitious applicant, Simon Chang, is looking for an interim order about custody for himself and access for the respondent, Suzie Schwartz. (For more information about these topics, see the section "Children.")
This sample document is just that: a sample. While it represents a more or less accurate picture of how Simon Chang might fill out this form, it may not be applicable to your situation. Use it as a reference only together with the official court form. Areas where you must supply information are indicated in black script. Back to the top of this chapter. Common Interim Applications This sections reviews the basic facts that have to be proved in support of the most common kinds of interim applications in family law matters. This is only a rough guide as the sort of facts that are important will change from case to case. Care of Children When making the first application about custody, guardianship and access, important facts will include:
If the application is to change an order or an agreement about the care of the children, important facts will include the facts which address the threshold legal test...
...as well as other important facts such as:
Child Support The important facts that go into an application for child support are:
Applications about child support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:
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 by a corporation will also have to produce:
Spousal Support When making the first application for spousal support, the important facts will include:
If the application is to change an order or an agreement about spousal support, important facts will include the facts necessary to address the threshold legal test...
...as well as other important facts such as:
All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:
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 by a corporation will also have to produce:
Restraining Orders The court can make a number of orders where someone is in need of protection, depending on what the person is in need of protection from. More information about these orders can be found in the chapter Other Family Law Issues > Family Violence. The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter Family Asssets > Protecting Assets. Back to the top of this chapter. Site Navigation
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